High Court of Ireland Decisions

1. Statutory Instrument No. 428 of 1992 was a Regulation made by the then Minister for Industry and Commerce for the purpose of giving effect to Council Directive 73/23/EEC on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits.

2. Regulation 4(1) of the Statutory Instrument reads:-

3. Regulations 4(4) and 4(5) provide:-

4. On 14th May, 1999 the respondent notified the applicant in the following terms:-

5. The said notification set out tests which were applied by the respondent in relation to samples of the units referred to, including in particular what are known as glow wire tests.

6. The applicant has applied to the Court by way of Appeal against this direction pursuant to Regulation 4(7) of the Statutory Instrument, which provides that the Court may annul or confirm the direction. By an Order of 9th May, 2001 in a preliminary hearing in these proceedings my colleague Kearns J. defined the power of the Court as follows:-

7. The Statutory Instrument and the Council Directive to which it gave effect form part of the general European Union policy in relation to free movement of goods, whereby it is sought to ensure that safety standards of goods are the same throughout all Member States, and therefore that goods put on the market in one Member State and complying with the safety regulations of that State, cannot be barred from the market in another Member State by reason of different safety regulations. To this end, Regulation 5 of the Statutory Instrument, under the heading “harmonised standards” provides:-

8. The meaning of this is quite clear, and is not in dispute, namely if the equipment in the present case complies with a harmonised standard, then it is deemed not to contravene Regulation 4, and the respondent has no function under Regulation 4(4) or 4(5). The applicant’s primary case is that the impugned product does in fact comply with the provisions of harmonised standards. The applicant’s case depends upon what harmonised standards apply to its product and to some degree on the construction of such standards.

9. In considering this question it is necessary to look first at the provisions of Council Directive 73/23/EEC. Article 2 of the Directive is essentially the same as Regulation 4(1) of the Statutory Instrument. Article 5 deals with the question of harmonisation and reads as follows:-

10. Article 6(1) provides:-

11. Before turning to the standards which have been published, I think it is necessary to explain the particular circumstances of this case, and the reasons for the respondent’s decision. The product concerned is a fuse unit known as a neozed Push-in-Slide-up Switch Fuse Unit. The particular unit with which we are concerned in fact is manufactured in Malaysia, but is certified by the manufacturers that it conforms with European Union standards. Samples of the product were purchased by the respondent and subjected to what is known as a glow wire test. This is a long established test of fire resistance whereby a glow wire heated to a predetermined temperature is applied to a sample of the product. The respondent alleges that the samples failed this test. While the validity of the test which was in fact applied is to some extent challenged by the applicant, the real issue in the case is whether the test is applicable at all to this product. The applicant’s case is that there is a harmonisation standard which does not require compliance with the glow wire test, and that their product complies with those standards, and therefore is deemed to be in compliance with Regulation 4 of the Statutory Instrument.

12. While the idea of having harmonised standards throughout the European Union is no doubt an excellent one, and on the face of it ought to lead to simplicity, the reality is that the formulation of such standards has become extremely complex and can be very difficult to follow. A number of problems arise. Firstly, there are two types of standards, namely general standards and specific standards, one of which may incorporate the other, but which may be in fact produced at different times. The second problem is that there are several versions of any particular standard published by different bodies at different times. Thirdly, arising out of the first two problems, it can be very difficult to determine the date on which any particular standard comes into force.

13. The procedure is that standards are initially formulated by the International Electrical Technical Commission (I.E.C.) when they are allocated a number, and to take the general rules in this particular case as an example, they were initially cited as I.E.C. 947-1:1988, the figure 1 denoting that they are general rules and the year 1988 denoting the year in which they were published. They are then approved by the European Committee for electrical technical standardisation (C.E.N.E.L.E.C) and adopted by the European Union, and in this case it became known as E.N. 60947-1:1991. The letters “E.N.” denote that they are now a European norm, but the numbering continues to retain the three numbers 947, and the year 1991 denotes the year in which the standard became a European norm. Finally, the standard was published and adopted in Ireland as an Irish standard, and then became cited in Ireland as I.S./E.N. 60947-1:1992, as 1992 was a year in which they became an Irish standard. This was the general specification for low voltage switch gear and control gear.

14. This general standard covered a number of different items of equipment, each of which come within the general class of low voltage switch gear and control gear, but are dealt with specifically by specific standards. In the present case there is a specific standard for “switches, disconnectors, switch disconnectors and fuse combination units”, which standard followed the same route as the general standards, having been originally published as I.E.C. 947-3:1990, which then became, with certain amendments, E.N. 60947-3:1992 and were ultimately adopted as an Irish standard and cited as I.S./E.N. 60947-3:1993. The figure 3 after the identifying number indicates that it relates to these particular products.

15. The applicant’s case is comparatively simple. It argues that the relevant standards are 60947-1:1991 and 60947-3:1992, and that on a proper construction of these standards, the equipment is not required to pass the glow wire test, as the glow wire test is not specified in those standards. The respondent accepts that the test is not specified, but argues that not only is the glow wire test not specified, but neither is any other test, and that there is an obligation on the respondent to test in some satisfactory manner, and that general obligation enables it to use the glow wire test. The respondent also argues, that in any event, in a later version of standard 60947-1 the glow wire test is specifically provided for, and that this should be incorporated into the specific standard, namely 60947-3.

16. It is necessary to look more closely at the wording of these standards, and I propose to refer to the 1991 and 1992 standards as put forward by the applicant as being the relevant standards.

17. Clause 7 of 60947-3 is headed “constructional and performance requirements”. Clause 7.1 is then headed “constructional requirements”, and the heading is followed by a note which reads:-

18. It then provides that sub-Clause 7.1. of Part I applies with certain additions which are not relevant to this case. Accordingly, Clause 7.1 of the general standards are incorporated into the specific standards. In construing the specific standards it is also very relevant to have regard to the object of the standard as stated in Clause 1.2, which reads:-

19. Therefore the standard deals with both the conditions which the equipment must comply with and the tests for confirming those conditions.

20. It is also relevant to refer to paragraph 8 which is headed ‘tests’ and it is provided that “sub-Clause 8.1.1. of Part I applies.”

21. To turn what is in fact incorporated in standard 60947-3 from the general standard 60947-1 one must look at Clause 7.1 and Clause 8.1.1., both of which are specifically incorporated. In looking at these clauses, one must have regard to the provision of the introduction to the standard which states:-

22. Included in the list of clauses is “7.1.1.1 insulating materials”.

23. The introduction then continues that “in the following clauses the appropriate paragraphs or notes are to be deleted”, and included in that list of clauses is “7.1.1. materials”.

24. Clause 7.1.1.1. under the heading insulating materials simply states “under consideration. ”

25. Clause 8.1. of the general standard provides that:-

26. Clause 8 then goes on to deal with tests under a number of headings, but states that tests in respect of materials are “under consideration”. There is no specific mention of a glow wire test.

27. I am quite satisfied that, construing Clause 7.1. of the general standard in accordance with the introduction, the reference in Clause 7.1.1.1. to “insulating materials” becomes vacant, and therefore there is no specific standard or requirement set for insulating materials. With reference to Clause 7.1.1., the note that requirements are under consideration also becomes vacant, but the primary requirements in the clause itself must remain. It would be an almost unbelievable construction of the clause to remove all references to requirements for materials, and therefore the provision still remains that materials must be suitable for the particular application, must comply with relevant test requirements and special attention must be called to flame and humidity resisting qualities. I am also satisfied that Clause 8.1. imposes an obligation on the relevant national authority to make tests to prove compliance with the relevant requirements, although in this standard, no specific test is provided in relation to the materials. This is confirmed by Clause 8.2. which provides that verification of compliance with the constructional requirements stated in sub-Clause 7.1. concerns the materials, although it subsequently states in Clause 8.2.1. that the test for materials are under consideration, in other words there are no specific tests are laid down. There is therefore a requirement that the respondent shall test this equipment, but no specific testing methods are laid down. I am quite satisfied from the evidence that the glow wire test is a proper test to be carried out in pursuance of this requirement, and that, in the present case, it was carried out by a competent authority. In my view this is the only interpretation of the standards which could possibly be said to conform with the objectives either of the original directive or of the standards themselves, namely to protect the public against dangerous or defective electrical equipment. Accordingly I must refuse the relief sought, and confirm the respondent’s direction.

28. In the circumstances I do not have to consider the alternative argument put forward by the respondent, namely that the later standards which did specify the glow wire test were in fact applicable in the present case.