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Brexit: the Grenfell dimension

2017-06-19 07:18:02

I have written before about the impact of the occupied field doctrine in EU law, and you can even find an informal definition if you look on the net. Broadly, it refers to legislative areas (or fields) which the EU treaties have defined as "shared competences", where both the EU and Member States have law-making powers (competence).

When these areas are first defined, and the EU (usually the Commission) has not sought to make any laws in that field, the Member States many continue making national legislation. However, once the EU legislates in the area, it becomes what is known as an "occupied field".

Then, in the precise areas in which the EU has legislated, the Member States are no longer permitted to legislate. In parallel or related areas, where the EU has no immediate intention of legislating, Member States may make their own laws, but only with the permission of the Commission, which – on notification of a request – may refuse and instead decide to legislate itself.

The basis of this doctrine is set out in Article 2(2) of the Treaty of the European Union (TEU), which states:
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
However, if you search the internet, will you not find very much written about the doctrine This is because, in the deep, arcane recesses of integration theory, they do not label it "the occupied field". It is known by the far more obscure title of "field pre-emption", alongside the related issues of "obstacle" and "rule pre-emption".

The doctrine itself is well known in federal structures, and is a facet of both the Indian and the US constitutions. In the EU context, though, from its original treaty base, it has been vastly expanded through ECJ jurisprudence and case law. Although the precise application tends to vary with different rulings, and between different areas of the acquis, it is a very real and important doctrine which has important practical effects.

It is upon this doctrine which I rely in my earlier piece when I asserted, in respect of the construction standards relating to the cladding used on Grenfell Tower, that the UK Government no longer has the authority to define its own standards (and has not had the authority since 1989 when the first Directive was promulgated).

The reason for this is that the Construction Products Regulation (repealing Council Directive 89/106/EEC) extends the competence of the Commission into the field of construction standards, using its powers under Article 114 relating the functioning of the internal market. Article 114 creates a shared competence and, as the Commission has exercised its power in respect of construction standards and the internal market, this is why the Member States have lost their power.

The way that the Construction Products Regulation (CPD) works, though, is quite complex - to the point of being thoroughly confusing to those not familiar with it.

The system starts with what are known as European Harmonised Standards, with the Regulation (and the Directive before it) recognising the European Committee for Standardisation (CEN) and the European Committee for Electrotechnical Standardisation (Cenelec) as the competent organisations for their adoption.

These standards are thus produced by Cenelec, in the form of EN standards. They take legal effect by being posted in the Official Journal as a Commission Communication within the framework of the CPR (Regulation (EU) 305/2011).

Once they are promulgated, adoption by the Member States becomes compulsory. They are obliged to remove or modify existing national standards to remove any conflicting requirements, in order to bring them into line with the EN.

As it stands, there are only about 450 harmonised standards, which include such delights as EN 15821:2010 on "multi-firing sauna stoves fired by natural wood logs". But, as yet, there is no harmonised standard for composite external cladding panels of the type used on Grenfell Tower.

This means that, where Member States already have their own national standards relating to such products, they are allowed to stay in force. And this explains why – even though standard-setting is an EU competence – different Member States (such as Germany, the Czech Republic and Denmark) still have their own standards.

However, that does not mean that Member States have the automatic right to continue framing their standards. Under the doctrine of "field pre-emption" (aka "occupied field"), they must seek permission from the Commission before they make any changes. In practice, this means that they must formally notify the Commission of an intended change, and if the Commission does not object, the new standard can take effect.

In considering whether to intervene, the Commission – even if Cenelec has no immediate plans for a harmonised standard – will be looking for a gradual convergence between the Member States and will not normally look favourably on proposals which magnify differences between regulatory regimes.

From that base, though, it gets even more complicated. Even where there is no harmonised standard, there is a second tier of standard-setting. This, rather than creating generic standards, allows individual manufacturers to certify their own products as conforming with regulatory standards, permitting the application of CE marking.

The way this works is under the aegis of a dedicated body, the European Organisation for Technical Assessment (EOTA), the function of which is to produce European Assessment Document (EADs).

These are harmonised technical specification for construction products, which apply where there are no formal harmonised standards. So far, 113 have been produced, each of them extremely detailed documents, setting out "essential characteristics" of a product, detailing "relevant assessment methods and criteria".

Once an EAD exists, a manufacturer can apply to a national Technical Assessment Body (TAB) and ask it, on the basis of the EAD, to produce a European Technical Assessment (ETA) in respect of their products. This becomes the basis of a formal Declaration of Performance (DoP) which then allows the manufacturer to CE-mark their product. This in turn allows the manufacturer to sell the product throughout the EU (EEA).

Interestingly, the very product said to have been used to clad Grenfell Tower has been given an ETA in the form of an Agrément Certificate issued by the British Board of Agrément (BBA) (pictured). This is the relevant TAB for certifying that the product is "fit for purpose" and conforms with UK Building Regulations.

This completely contradicts Chancellor Philip Hammond's assertion that the cladding used on Grenfell Tower, which has been widely blamed for spreading the blaze, is banned in the UK on (areas of) buildings above 18 metres. It is also at odds with the claim by the Department for Communities and Local Government, which has said that, if this cladding was used, "it would not comply with current building regulations".

The Agrément Certificate attests that, in relation to the Building Regulations for reaction to fire, the panels may be regarded as having a Class 0 surface – which is the standard set in Building Regulations Approved Document B1 (see page 95).

Now, going back to the purpose of this Certificate as the basis of the product CE Marking, this means that the product can be marketed anywhere in the EU/EEA for the use intended – as external cladding.

In the absence of a harmonised standard, Regulation (EC) No 764/2008 on the mutual recognition of standards applies. In the wake of the Cassis de Dijon judgement, this Regulation stops any national authority from prohibiting the sale on its territory of goods which are lawfully marketed in another Member State, "even where those products were manufactured in accordance with technical rules different from those to which domestic products are subject".

On this basis, not only is the cladding not "banned" in the UK (quite the reverse), it is difficult to see how its sale could be legally banned in Germany or any other EU Member State.

As to whether the product could be banned by the UK government, the answer is qualified. The Government could only apply the procedure set out in Article 58 of the CPR, implementing only those measures which the Commission considered justified.

Looking at all this in the round, in what is my second blogpost on this subject, it would be perverse to assert that there was not an EU dimension to the Grenfell disaster. But the extent to which the EU could be considered to have had a part in the disaster is a matter of judgement, and one can only speculate as to whether things would have been different had we been our own masters.

In the interests of completeness, one must say that all these provisions apply to the EEA, so that if the UK adopted the Efta/EEA route for Brexit, we would see no immediate relief from them. On the other hand, without these provisions in force, it would be difficult for the UK to market construction products on the European market (notwithstanding that Reynobond is made in France).

To that extent, not only does the Grenfell Tower disaster have an EU dimension, Brexit has a Grenfell dimension. When we consider how to prevent any repeat of such a disaster, we are going to have to consider very hard the nature of the regulation we carry over, and how we then modify it to restore any necessary functionality that we might have lost.