Alba Radio Ltd & Anor, R (On The Application Of) v Department Of Trade & Industry [2000] EWHC Admin 423 (30 November 2000)

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1. The Applicants are importers and distributors of electrical goods. The product at the centre of these proceedings is the domestic toaster. There are two relevant types of toaster: hot-wall and cool-wall. The names speak for themselves. In recent years cool-wall toasters have emerged as a popular, safer product - at least to the extent that there is a considerably reduced chance of contact burns from that form of toaster. Cool-wall toasters have plastic walls and insulating material between the wall and the heating element. However, the older form of toaster, without such insulation and with metal sides, continues to be manufactured and sold in large numbers. As John Malin, Group Secretary of Alba plc, says at paragraph 2 of his witness statement - "...... a large number of customers continue to buy hot-wall toasters and there are millions of hot-wall toasters in use throughout the United Kingdom". Until recently, cool-wall toasters were more expensive. That is no longer the position.

2. The supply onto the market of products such as electrical toasters is regulated, insofar as the safety of the products is concerned, by the Electrical Equipment (Safety) Regulations 1994, SI 1994/3260 ("the 1994 Regulations"). These Regulations were made under section 11 of the Consumer Protection Act 1987, and section 2(2) of the European Communities Act 1972. The Regulations are intended to implement, in the United Kingdom, the requirements of Council Directive 73/23/EEC on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits ("the Low Voltage Directive").

3. It will be necessary in the course of this judgment to consider the terms of the Directive and the Regulations in some detail.

4. The Applicants commenced these judicial review proceedings by an application for permission dated 18 October 1999. That date is over 4½ years after the 1994 Regulations were made on 15 December 1994 and after they came into force on 9 January 1995. In their Form 86A, the Applicants seek judicial review of:

"(a) the Respondent's decision to communicate to the prosecuting authorities, interested trade associations and Low Voltage Directive Notified Bodies a policy based on an erroneous reflection of the law set out in the Low Voltage Directive of 19 February 1973, as amended, and the Electrical Equipment (Safety) Regulations 1994 by letters dated 14 July 1999 (communicated to the First Applicant on 16 July 1999) and confirmed in letters dated 10 August 1999 and 24 September 1999;

(b) the Electrical Equipment (Safety) Regulations 1994 which fail to implement lawfully the provisions of the Low Voltage Directive; and

(c) a decision taken in early 1998 by the Respondent on behalf of the Member State purportedly under article 9 of the Low Voltage Directive to implement the `safeguard procedure' on the grounds of inadequacy of a harmonized standard, the existence of which decision was unknown and could not reasonably have become known to the Applicants until receipt of the letter of 16 July 1999 and the details of which were not available until the letters of 10 August and 24 September 1999 and a meeting between the Respondent and representatives of the industry on 28 September 1999."

5. On 18^th April 2000, Mr Justice Jackson directed that the application for permission be stood over for hearing together with the substantive argument, as a "rolled up" hearing - following R. v. Criminal Injuries Compensation Board, ex parte A [1999] 2 WLR 974, at pages 978F-979C.

6. I will first consider the status of the letter dated 14 July 1999 - the subject of a direct challenge under (a) above. The letter does not, in my opinion, set out a "policy" which could properly form the subject of an independent challenge by way of judicial review. I do not consider that the letter should be treated in the same way as a circular issued by a government department - see, and contrast, Royal College of Nursing v Department Health and Social Security [1981] AC 800 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The letter merely provides information to the reader. However the letter contains a useful summary of the practice followed by the Department of Trade and Industry in relation to the 1994 Regulations and the surface temperature of toasters in particular. It reads as follows:

In March 1998 formal enforcement action was taken to remove from the UK market an electric toaster which was considered not to comply with the safety provisions of the Electrical Equipment (Safety) Regulations 1994 ("the 1994 Regulations").

The decision to remove the toaster from the market was taken because the non-working sidewalls of the toaster were found to reach temperatures of up to 138º C which were considered to be excessive and pose a risk to the safety of consumers. Although the supplier of the toaster claimed that it had been successfully tested (not by a notified body) in accordance with EN 60335-2-9; Safety of household and appliances - Part 2: Particular requirements for toasters, grills, roasters and similar appliances, the toaster was nevertheless deemed not to comply with the safety requirements of the 1994 Regulations.

The case was subsequently notified, by this Department, to the European Commission and all other Member States in accordance with the provisions of Article 9 of the Low Voltage Directive. In the absence of any objections being raised by any Member State the European Commission have confirmed that the enforcement action taken to remove the toaster from the market is deemed to be justified. The European Commission have also stated that it is their intention to publish an opinion to this effect but the Commission are unlikely to do this until the autumn.

The Department take the view that any further delay in providing information about this case and the effects that it will have on the market will only serve to create even more confusion. Therefore we believe that it is in the best interests of all parties to provide the information contained in this letter.

This case only refers to the risk posed by high non-working surface temperatures. The current version of the above standard fails to address this risk. However, the safety objectives of Schedule 3 of the 1994 Regulations require that electrical equipment must be designed and manufactured so as to ensure that temperatures which could cause a danger are not produced. Due to the absence of any adequate specification in relation to non-working surface temperatures, EN 60335-2-9 cannot be relied upon to guarantee compliance with the safety requirements of the 1994 Regulations. Thus due to the shortcoming in this standard, compliance with it will not provide a presumption of conformity with the 1994 Regulations.

The European Commission have instructed CENELEC to revise the above standard to address this problem. However, it is unlikely that the revised standard, which will include a specification on non-working surface temperatures, will be available until September 2000. The matter of surface temperature limits of toasters is under discussion within the British National Committee at the British Standards Institution. The Committee represent the UK's standards interests in Europe. ...

Manufacturers and other suppliers, when seeking to establish the compliance of a toaster with the requirements of the 1994 Regulations, must therefore properly address the risk on non-working surface temperatures. This may include conducting a risk analysis and assessment in order to ensure that all reasonable steps are taken to ensure that equipment is designed and manufactured in such a way as to reduce the risk in relation to non-working surface temperatures such information being included in the Technical Documentation.

In view of the above, suppliers, who are holding stocks of toasters, may consider that it would be prudent to establish the non-working surface temperatures of their stock. If there are any doubts about the compliance of any product with the 1994 Regulations I would strongly advise such suppliers to obtain their own independent legal advice and to contact their local Trading Standards Department.

7. The letter contains two expressions which may require explanation. The following is taken from paragraph 6 of the witness statement of Christopher Parish, Assistant Director of Standards and Technical Regulations Directorate 6 of the Department of Trade and Industry.

A body notified by the DTI pursuant to article 11 of the Low Voltage Directive to draw up reports on conformity and opinions in respect of electrical equipment as described in articles 8 and 9 of the Low Voltage Directive.

CENELEC is the European Committee for Electro-Technical Standardisation. It was set up in 1973 as a non-profit-making organization under Belgian law. It has been officially recognized as the European standards organization in its field by the European Commission in Directive 98/34/EC. Its members (delegations from each of the 19 national committees) have been working together in the interests of European harmonization since the late 1950s, developing alongside the European Union. CENELEC works with 40,000 technical experts from 19 EU and EFTA countries to publish standards for the European market. All interested parties identified by CENELEC are consulted during the CENELEC standards drafting, through involvement in technical meetings at national and European level (to establish the content of the draft) and through enquiries conducted by the members.

8. However this case is not directed at the content of that letter at all. The letter may have triggered the challenge (see paragraphs 3 to 6 of the witness statement of Peter Miller, the Applicants' solicitor) but the real subject of the challenge is the lawfulness of the 1994 Regulations which, in turn, lead to the decision taken by the Department of Trade and Industry to notify the European Commission and other Member States pursuant to article 9 of the Low Voltage Directive that a particular toaster had been prohibited from being placed on the UK market.

9. The Court, therefore, is faced with an application for judicial review commenced in October 1999 seeking to challenge the lawfulness of the 1994 Regulations and a decision made in 1998 to notify under article 9 of the Low Voltage Directive. Faced with such periods of delay, and considering the clear and obvious requirements of good administration, it is almost inevitable that permission and substantive relief would be, and should be, refused. See R v Secretary of State for Trade and Industry ex parte Greenpeace [1998] ENV L R 415.

10. However, the picture is somewhat complicated by the fact that the First Applicant has been prosecuted, in early 1999, by Leicestershire County Council Trading Standards Service, on the grounds that toasters which it has imported and distributed are not safe contrary to regulation 5(1)(a) of the 1994 Regulations and section 12 of the Consumer Protection Act 1987.

11. I was informed by Claire Andrews, Counsel for the Applicants, that there are a number of other cases which currently stand adjourned in various magistrates' courts awaiting the outcome of these proceedings. There is a real prospect, therefore, of the central issue in these proceedings being considered by a court and possibly the Divisional Court of the High Court on appeal by way of case stated. In those circumstances it seems to me that there is a public interest, and not merely the private interests of these Applicants, in play. I have decided therefore, to extend the time for bringing these proceedings and to move on to consider the substantive arguments. I should record, however, that I am unpersuaded by the reasons for delay set out at the end of the Form 86A. I accept, of course, that the merits of the argument may also be relevant in deciding whether or not the time limits should be extended. However, it seems to me that time should be extended in this case, whether or not the argument is eventually successful.

12. As already indicated, the source document is the Low Voltage Directive. The relevant recitals are as follows.

"Whereas the provisions in force in the Member States designed to ensure safety in the use of electrical equipment used within certain voltage limits may differ, thus impeding trade; ...

Whereas within the Community the free movement of electrical equipment should follow when this equipment complies with certain safety requirements recognized in all Member States; whereas without prejudice to any other form of proof, the proof of compliance with these requirements may be established by reference to harmonized standards which incorporate these conditions whereas these harmonized standards should be established by common agreement by bodies to be notified by each Member State to the other Member States and to the Commission and should be publicised as widely as possibly; whereas such harmonization should for the purposes of trade eliminate the inconveniences, resulting from differences between national standards;

Whereas, without prejudice to any other form of proof, the compliance of electrical equipment with the harmonized standards from the affixing or issue of marks or certificates by the competent organizations or, in the absence thereof, from a manufacturer's declaration of compliance; whereas in order to facilitate the removal of barriers to trade, the Member States should recognise such marks or certificates, or such declaration as elements of proof; whereas, with this end in view, the said marks or certificates should be publicized, in particular by their publication in the Official Journal of the European Communities; ...

Whereas it is possible that electrical equipment may be placed in free circulation even though it does not comply with the safety requirements and whereas it is therefore desirable to lay down suitable provisions to minimise this danger. ..."

13. It is also necessary to consider various articles of the Low Voltage Directive.

1. The Member States shall take all appropriate measures to ensure that electrical equipment may be placed on the market only if, having been constructed in accordance with good engineering practice in safety matters in force in the Community, it does not endanger the safety of persons, domestic animals or property when properly installed and maintained and used in applications for which it was made.

2. The principal elements of the safety objectives referred to in paragraph 1 are listed in Annex I.

(It is unnecessary to set out the full detail of Annex I, but paragraph 2(b) refers to the need for measures of a technical nature which should be prescribed in order to ensure "that temperatures, arcs or radiation which would cause a danger, are not produced".)

The Member States shall take all appropriate measures to ensure that if electrical equipment is of such a nature as to comply with the provisions of Article 2, subject to the conditions laid down in Articles 5, 6, 7 and 8, the free movement thereof within the Community shall not be impeded for reasons of safety.

The Member States shall take all appropriate measures to ensure that, in particular, electrical equipment which complies with the safety provisions of harmonized standards shall be regarded by their competent administrative authorities as complying with the provisions of Article 2, for the purposes of placing on the market and free movement as referred to in Articles 2 and 3 respectively.

1. Where harmonized standards as defined in Article 5 have not yet been drawn up and published; the Member States shall take all appropriate measures to ensure that, for the purposes of placing on the market or free movement as referred to in Articles 2 and 3 respectively, their competent administrative authorities shall also regard, as complying with the provisions of Article 2, electrical equipment which complies with the safety provisions of the International Commission on the Rules for the Approval of Electrical Equipment (CEE) or of the International Electrotechnical Commission (IEC) in respect of which the publication procedure laid down in paragraphs 2 and 3 has been applied.

1. If, for safety reasons, a Member State prohibits the placing on the market of any electrical equipment or impedes its free movement, it shall immediately inform the other Member States concerned and the Commission indicating the grounds for its decision and stating in particular:

- whether its non-conformity with Article 2 is attributable to a short-coming in the harmonized standards referred to in Article 5, the provisions referred to in Article 6 or the standards referred to in Article 7;

- whether its non-conformity is attributable to faulty application of such standards or publications or to failure to comply with good engineering practice as referred to in Article 2.

2. If other Member States raise objections to the decision referred to in paragraph 1, the Commission shall immediately consult the Member States concerned.

3. If an agreement has not been reached within three months from the date of notification as laid down in paragraph 1, the Commission shall obtain the opinion of one of the bodies notified in accordance with the procedure laid down in Article 11 having its registered office outside the territory of the Members States concerned and which has not been involved in the procedure provided for in Article 8. The opinion shall state the extent to which the provisions of Article 2 have not been complied with.

4. The Commission shall communicate the opinion of this body to all the Member States which may, within a period of one month, make their observations known to the Commission. The Commission shall at the same time note any observations by the parties concerned on the abovementioned opinion.

5. Having taken note of these observations the Commission shall, if necessary, formulate the appropriate recommendations or opinions.

1. The Member States shall put into force the laws, regulations and administrative provisions necessary to comply with the requirements of this Directive within eighteen months of its notification and shall forthwith inform the Commission thereof. ...

2. The Member States shall communicate to the Commission the texts of the main provisions of national laws which they adopt in the field covered by this Directive.

14. The argument in these proceedings has focused almost exclusively on Article 9(1) and, in particular, on the fact that it is anticipated by the language of the Article that the prohibition will be by the Member State and the duty to inform is then placed on that Member State. Miss Andrews contrasts the wording of Article 9 with Article 5 which refers to a Member State's "competent administrative authorities". That term, she notes, is strikingly absent from Article 9.

15. The Low Voltage Directive is a "New Approach" Directive, in other words a directive which sets out essential requirements (normally health and safety requirements) written in general terms. Products must meet the essential requirements before they can be placed on the market in the United Kingdom or anywhere else in the European Economic Area. The new approach directives arose from the "New Approach to Technical Harmonization and Standards" which was agreed in May 1985 by European Community Ministers in order to fulfil the objective of achieving the free movement of goods. (This description is taken from paragraph 7 of the witness statement of Christopher Parish referred to above.)

16. The first regulations to be introduced in the United Kingdom for the specific purpose of transposing the Low Voltage Directive into domestic law were the Low Voltage Electrical Equipment (Safety) Regulations 1989 (SI 1989 No. 728) which came into force in the United Kingdom in June 1989. The 1989 Regulations moved away from a detailed reference to specific British standards towards the New Approach. In particular, they imposed a general requirement that "electrical equipment shall be ... safe": Regulation 5(1). In determining whether that safety requirement was met, the 1989 Regulations provided that due regard should be had to the specific safety requirements in Annex I of the Low Voltage Directive: see Regulation 5(2). Regulation 6(1) introduced the presumption that complying with a harmonized standard would satisfy the requirement of safety.

17. Responsibility for the enforcement of the 1989 Regulations was given to local trading standards departments under section 27 of the Consumer Protection Act 1987, and the regulations were to be treated as if they were safety regulations under that Act: see Regulations 12 and 14. The guide to the 1989 Regulations sets out the requirements of the Department of Trade and Industry to notify the European Commission of enforcement action taken once the Department has been notified of enforcement action by the trading standards department.

18. After oral submissions in this case had been completed, but at my invitation, the Respondent department produced a letter dated 11 May 1989 which shows that, as required by Article 13 of the Low Voltage Directive, the 1989 Regulations were sent to the European Commission "in order to keep you up to date".

19. I turn now to the 1994 Regulations. These regulations were introduced in order to implement the amendments to the Low Voltage Directive which occurred in 1993. I am also informed, by the evidence of Mr Parish at paragraph 20 of his witness statement, that they were designed to correct a number of errors found in the 1989 Regulations. The most serious of those errors was that the 1989 Regulations were considered not to address correctly the essential safety requirements in Article 2 of the Low Voltage Directive. Although the 1989 Regulations imposed a general requirement of safety under Regulation 5(1), it appeared that the effect of Regulations 5(2) and 6 was that any equipment that complied with a relevant harmonized standard must necessarily be taken to be "safe". As a result, the 1989 Regulations made it impossible to prosecute suppliers of products which complied with a harmonized standard which did not meet the essential safety requirements of the Low Voltage Directive.

20. The essential provisions of the 1994 Regulations, to which should be added the interpretation provision in Regulation 3, relevant to these proceedings are as follows:

(b) constructed in accordance with principles generally accepted within the Member States as constituting good engineering practice in relation to safety matters and in particular shall be designed and constructed to ensure that it is safe when connected to the electricity supply system by providing a level of protection against electric shock which relies on a combination of insulation and the protective earthing conductor contained within the electricity supply system or which achieves that level of protection by other means;

(c) in conformity with the principal elements of the safety objectives for electrical equipment set out in Schedule 3 to these Regulations.

Electrical equipment which satisfies the safety provisions of harmonized standards shall be taken to comply with the requirements of regulation 5(1) above unless there are reasonable grounds for suspecting that the electrical equipment does not so comply.

(1) Where there are no relevant harmonized standards, electrical equipment which satisfies international safety provisions shall be taken to comply with the requirements of regulation 5(1) above unless there are reasonable grounds for suspecting that the electrical equipment does not so comply.

(1) Except in the case of electrical equipment which in the opinion of the enforcement authority is likely to jeopardize the safety or health of any person, where an enforcement authority has reasonable grounds for suspecting that the affixing of the CE marking to electrical equipment to which these Regulations apply involves a contravention of these Regulations or any part of them, it may serve a notice (a "compliance notice") on the manufacturer of that electrical equipment or his authorised representative established in the Community ...

(1) Subject to paragraph (2) below, no person shall supply any electrical equipment in respect of which the requirements of regulations 5(1) and 9(1) above are not satisfied.

Every authority and council on whom a duty is imposed by virtue of section 27 of the 1987 Act -

(a) shall have regard, in performing that duty, in so far as it relates to any provision of these Regulations, to matters specified in any direction issued by the Secretary of State with respect to that provision; and

(b) shall give immediate notice to the Secretary of State of any suspension notice served by it or any application made by it for an order for forfeiture of any goods to which these Regulations apply or any other thing done in respect of any such goods for the purpose of or in connection with sections 14 to 17 of that Act.

22. They submit that Regulation 5(1) is an application of a domestic, United Kingdom standard, which is expressly prohibited by Article 3 of the Low Voltage Directive.

23. They submit that the reference in Regulation 6 to "reasonable grounds for suspecting" has the effect that the instruction to the competent administrative authorities falls materially short of an instruction to regard compliance with harmonized standards as meeting the requirements of the Low Voltage Directive because it provides not only for local authorities to be able to reverse the presumption but does so on a very low test.

24. They submit that the reference in Regulation 14 to the prohibition on "supply" amounts to a further restriction on free movement of goods in contravention of the Low Voltage Directive.

25. Finally, they submit that Regulation 15 is defective in that it only provides a role for the Secretary of State after any suspension notice has been issued at a local level. This means, so they submit, that where goods are in conformity with a harmonized standard, the Secretary of State is not involved in the decision-making or the ambit of the suspension notice. The harmonized standards, again they submit, could be displaced by the reasonable suspicion of a junior trading standards officer. When addressing the same regulation, they draw attention to the absence of a provision for notification by the Secretary of State where there has been a prosecution, although prosecution is as much a fetter on the free movement of goods as a suspension notice: see, for example, Procureur du Roi v Dassonville (Case 8/74) [1974] 2 CMLR 436, at paragraph 5 on page 453, and Keck & Mithouard (Joined Cases C-267 and 268/91) [1993] ECR I-6097.

26. In summary, Miss Andrews, on behalf of the Applicants, submits that the 1994 Regulations are incompatible with the Low Voltage Directive and therefore unlawful because (a) they permit local authorities to prosecute, or suspend, in relation to goods which comply with a harmonized standard and/or (b) they allow the implementation of the safeguard procedure by a decision taken by a local authority, which is not subject to relevant scrutiny by central government.

27. At this point, it is convenient to set out a summary of the enforcement regime in the United Kingdom, and a brief description of what happened in relation to the electric toasters which form the subject matter of this case. The following summary is taken from paragraphs 27 to 31 of the witness statement of Christopher Parish, with most of which the Applicants do not take issue (see paragraph 30 below).

28. If there are reasonable grounds to suspect that an offence is being committed (for example, an item of electrical equipment fails to comply with the 1994 Regulations) the enforcement authorities have certain powers which they may exercise for the purposes of ascertaining whether an offence has been committed. They may seize the goods, make test purchases, search any business premises and obtain records: see sections 28 to 30 of the Consumer Protection Act 1987.

29. Where substantial non-compliance is found and corrective action is not undertaken by the supplier, the enforcement authorities can withdraw equipment from the market and prohibit any further equipment from being placed on the UK market by serving a suspension notice, or they may apply to the courts for an order of forfeiture of the goods and/or prosecute the offender(s) for breach of the 1994 Regulations: see sections 14 to 16 of the Consumer Protection Act 1987. If the offender is found guilty of an offence, the court may impose a sentence of imprisonment for up to 3 or 6 months and/or a fine not exceeding £5000, depending upon the offence committed: section 12.

30. However, according to Mr Parish, prosecution is considered to be the last resort and is only used when advice and persuasion failed to secure compliance with the 1994 Regulations. (This part of Mr Parish's evidence was not accepted by the Applicants - see, in particular, paragraph 29 of Mr Miller's Witness Statement.) There is a defence available to an accused person based on due diligence: see section 39 of the Consumer Protection Act 1987. There is also a right of appeal following the service of a suspension notice, an order of forfeiture or a conviction: see sections 15, 16(5) and 33 of the Consumer Protection Act 1987.

31. In addition to the powers of the trading standards departments, the Secretary of State is also an enforcement authority under section 45(1) of the Consumer Protection Act 1987. He is also given certain additional enforcement powers. He may serve on any person a "prohibition notice" to prevent unsafe goods from being supplied, require a supplier to publish at his own expense a warning notice about goods which are considered to be unsafe ("notice to warn") and/or require any person to make available any information for the purposes of deciding to make, vary or revoke safety regulations or revoke a prohibtion or to serve or revoke a notice to warn: see Sections 13 and 18 of the Consumer Protection Act 1987.

32. The primary responsibility for enforcement of the 1994 Regulations therefore falls to the trading standards departments in England and Wales. Trading standards departments share information and encourage co-operation between enforcement authorities and business by application of the "home authority" principle. Under this principle, each local authority takes responsibility for the surveillance of goods and services originating in its area. Businesses in each area can go to their home authority for preventive guidance and advice. Where an enforcement authority in another area has reason to believe that a product does not comply with the relevant legislation, it can consult the home authority and make use of arrangements for monitoring and resolving disputes.

33. At paragraph 37 of his witness statement Mr Parish states that although the trading standards departments are used for enforcement purposes within the United Kingdom, Community responsibility for participation in the safeguard procedure under Article 9 of the Low Voltage Directive falls to the Department of Trade and Industry. It is for that reason, he says, that the trading standard departments are required by regulation 15(b) of the 1994 Regulations to give immediate notice to the Department of Trade and Industry of the service of any suspension notice so that the Department is then in a position to fulfil the United Kingdom's obligations under Article 9 of the Low Voltage Directive. He explicitly accepts that the Applicants are correct when they say that the Department of Trade and Industry exercises no independent discretion as to whether the safeguard procedure should be operated. If a suspension notice has been served, that is seen as an interference with the free movement of goods and, therefore, a notice must immediately be served under Article 9.

34. What I have set out above deals with the general enforcement arrangements in the United Kingdom. It is now necessary to address the operation of that system in relation to the electric toasters.

35. In March 1998, the Department of Trade and Industry received notification that a complaint had been received by the London Borough of Southwark Trading Standards Service in relation to a Goldmark Electric Toaster model no. A64.

36. Following the complaint, the toaster had been submitted for examination by a Notified Body in accordance with Article 11 of the Low Voltage Directive which concluded that, in its opinion, the submitted sample did not comply with the safety requirements of the 1994 Regulations and was therefore unsafe.

37. A notification of enforcement action was then received by the Department of Trade and Industry informing it that measures had been taken which resulted in the Goldmark A64 Home Electric Toaster being prohibited from being placed on the market.

38. The manufacturer and the retailer had been approached with the results of the test carried out by the Notified Body, but they were of the opinion that, because the toaster met the standard BSEN60335-2-7, it was safe. It was agreed between Southwark Trading Standards Service and the home authorities for the manufacturer and the retailer that the suspension notices would be issued by Southwark. The suspension notices prohibited both the manufacturer and the retailer, based in Manchester and Bradford, from supplying, offering to supply, agreeing to supply or exposing to supply the toaster without the consent of the Southwark Trading Standards Service for a period of 6 months commencing on 6 March 1998. Thus, according to Mr Parish, "the enforcement action had the effect of prohibiting the supply of that toaster nationally, and not just within Southwark".

39. On receipt of the notification from the Southwark Trading Standards Service, the Department of Trade and Industry checked it for completeness, verified that the case did in fact involve a prohibition of a product on the market or the impeding of its free movement, and then sent to the Commission and all other Member States, on 12 March 1998, a notification under Article 9 of the Low Voltage Directive.

40. No objections were made during the 3-month period following this notification and, thus, the action was deemed to be justified by virtue of Article 9(2) of the Low Voltage Directive.

41. It is unnecessary to burden this judgment with what happened within the European authorities after the notification in March 1998. However, it is to be noted that in March 2000 the European Commission published its opinion and said this:

"In the context of the application of the safeguard clause procedure in accordance with Article 9 of the Low Voltage Directive, a shortcoming in the harmonized standard EN60335-2-9, applied in conjunction with EN60335-1, was brought to the attention of the Commission.

This refers to the risk of high non-working surface temperatures of apparatus covered by EN60335-2-9. This standard, in its current version, does not address the risk in relation to non-working surface temperatures. The safety objectives, as laid down in Annex I, section 1(d) and 2(b), Directive 73/23/EEC [the Low Voltage Directive] require electrical equipment to be designed and manufactured so as to ensure that protection against hazards in relation to surface temperature is assured. Due to the absence of adequate specifications in relation to non-working surface temperatures, EN60335-2-9 (Clause 11) and EN60335-1 (Clause 11) ... are therefore not regarded as giving a presumption of conformity with the stated safety objectives.

The European standards body CENELEC has been requested by the Commission to ensure that the abovementioned hazard is adequately addressed in a revised version of this standard. A revision of EN60335-2-9 is currently under way.

In the absence of a revised harmonized standard, manufacturers, when establishing compliance of relevant electrical equipment with the Low Voltage Directive must therefore address the risk of non-working surface temperatures."

42. Therefore, the safety of hot-wall toasters is no longer an issue. The risk arising from non-working surface temperatures has been addressed at a Community level. In relation to the safety, or otherwise, of hot-wall toasters, it could also be said that the issues are now academic.

43. However, the Applicants' complaint is that there has been unfairness in the procedures adopted by the United Kingdom which have deprived the industry, and importers and distributors such as the Applicants, from becoming involved in the safety debate at an early stage, and being denied the opportunity to make representations - to the Department of Trade and Industry before the Article 9 notification process was triggered and, thereafter, at a Community level. The Applicants' concern is illustrated, so they submit, by the facts in this case whereby a single complaint within the jurisdiction of a single local trading standards department - the London Borough of Southwark (see the statement of Kerstin Heyfron dated 15 December 1997) - led eventually to a suspension notice and a notification to the Department of Trade and Industry and, without more, an automatic notification to the Commission and to other Member States in accordance with Article 9 of the Low Voltage Directive.

44. It is submitted by the Applicants that, taking account of the fundamental importance of the free movement of goods within the Community, it cannot have been intended by the Community legislators (through the Low Voltage Directive) that free movement should be, or could be, impeded even on safety grounds at the instigation of a body as local as the trading standards department of a single London borough.

45. As already noted, on 6 March 1998 the London Borough of Southwark, by its Trading Standards Service, issued Notices of Suspension of Goods under section 14 of the Consumer Protection Act 1987, addressed to Goldmark (UK) Limited in Manchester and Grattan plc in Bradford, prohibiting both companies from supplying, offering to supply, agreeing to supply or exposing to supply "unsafe" hot-wall toasters. These notices were issued with the approval of the home authorities in Bradford and Manchester. It is said by Mr Parish for the Department of Trade and Industry that this enforcement action had the effect of prohibiting the supply of the toaster nationally and not just within Southwark (see paragraph 53 of his witness statement) and that this "national prohibition" was of some significance in considering whether or not there has been proper compliance with Article 9.

46. I heard some, limited, argument on the geographic extent of a local trading standards department's jurisdiction under section 14 of the 1987 Act. I was referred in particular to sections 27 and 45(1) of the 1987 Act and also to section 69 of the Weights and Measures Act 1985 and to sections 137 and 222 of the Local Government Act 1972. I was invited to conclude that, contrary to the remarks made by Mr Parish, these suspension notices operated only to prohibit the sale etc. of these toasters in Southwark and that there was no national impact at all. This is clearly an important question but is not raised directly in these proceedings. For example, it appears to be accepted by both sides that a suspension notice could have been issued confining the prohibition to the geographic area of the local trading standards department. The Article 9 procedure, therefore, has to be tested on that assumption - an investigation in Manchester; action in Manchester prohibiting the supply of the goods; notification to the Department by a trading standards department in Manchester; and, without further national action by the Department, notification under Article 9 to the Community. Further, the Applicants were not the recipients of, or subject to, these suspension notices.

47. Therefore, I have concluded that a decision as to the geographic reach of a local trading standards department's suspension notice under section 14 of the Consumer Protection Act 1987 should wait until another day.

48. It seems to me that there is, at the end of the day, a single main issue in this case. Can the Article 9 notification process be initiated by a local, rather than national, decision as to the safety of a product (which had been produced in compliance with a harmonised standard), and by action at a local rather than at a national level, which interferes with the free movement of those goods? Miss Andrews, of course, submits that the answer to that question must be "no". Her argument is that it must have been intended that Member States rather than one or more of the many local bodies (I am told that there are 202 trading standards departments in the United Kingdom), must form their own definitive view before the obligations to notify under Article 9 of the Low Voltage Directive are engaged. Miss Andrews submitted that it was only if the Secretary of State used his powers under sections 13 and 14 of the Consumer Protection Act 1987, and acted nationally, that he could then move on and act internationally. A Member State (here represented by the Department of Trade and Industry) had what she described as a higher level of discretion to exercise before it took the serious step of prohibiting a product or interfering with the free movement of goods in the market. A local complaint could only be a trigger to investigations, on a broader, more fully informed basis, by a national authority before any far reaching decision was taken. According to Miss Andrews, the vice of the 1994 Regulations was that they permit a local authority to decide to interfere with the free movement of goods, whereas the Low Voltage Directive only permits such action at a national level.

49. Miss Andrews seeks support for her interpretation of the Low Voltage Directive - in particular Article 9 - from the judgment of the European Court of Justice in Preliminary Ruling in Criminal Proceedings Against Cremonini and Vrankovich (Case 815/79) [1980] ECR 3583.

50. That case concerned an order made by a local magistrate in Italy instituting criminal proceedings in relation to the importation of various electrical goods. The form of the Low Voltage Directive was then different, before the 1993 amendments, but the language of Article 9 has remained the same. The Court made observations in relation to Article 9. At paragraphs 10 and 11 of the judgment, the Court said:

"10. The free movement of this equipment, which is presumed to conform to the safety standards referred to in the above-mentioned articles may be impeded for reasons of safety only by implementing the Community procedure provided for by Article 9 under which a Member State may forbid the placing on the market of any electrical equipment or impede its free movement only on condition that it immediately informs the other Member States and the Commission, indicating the grounds for its decision and for the non-conformity of the equipment with the standards prescribed by the directive, and the Commission must then take the steps as described in the said Article 9. In fact, where a harmonization directive applies, the appropriate supervision must be carried out and the protective measure must be adopted within its framework.

11. It follows from the said Article 9 of the Directive that the procedure which it lays down can only be implemented by a Member State, an expression which clearly refers to a national administrative authority acting on behalf of the State and therefore empowered to participate in a procedure which takes place between the Commission and the Member States and which precludes in this connection any action by the judicial authority as such."

51. Miss Andrews relies in particular on the phrase "national administrative authority", seeking thereby to exclude a role for a local trading standards department. My attention was drawn to that part of paragraph 11 which refers to the ability of the administrative authority to participate in the procedure which takes place between the Commission and the Member States. Mr Crow for the Department of Trade and Industry emphasizes that the European Court was dealing with the question whether judicial authorities could impose prohibitions on the free movement of goods which did not have the effect of triggering the Article 9 procedures. He further submitted that the word "national" was being used in the sense of "domestic" (as opposed to "Community" rather than as opposed to "local").

52. There is some marginal support for Miss Andrews' reading of the judgment in the observations of the accused at pages 3590-3591 of the report in which they refer to the Italian implementing law which conferred power on "an authority which is able to act at a centralised (and therefore general) national level rather than on a limited scale (and in the extreme case, with reference to a given, individual item of electrical equipment)".

53. On the other hand, the observations of the Commission (see page 3594) support the conclusion that the European Court was being invited only to distinguish a judicial from an administrative body. The Commission refers to Member States acting by their "administrative authorities and not by the national courts" and refers to "competent administrative authorities".

54. The Advocate General delivered an opinion in which (at page 3633) he concluded that where any authority in a Member State (judicial or otherwise) definitively decided to restrict the marketing or free movement within the Community of electrical equipment to which the Low Voltage Directive applies, the Member State was under an obligation immediately to inform the other Member States and the Commission of the decision. The opinion (in relation to judicial authorities) was not accepted by the Court, but it is clear from other passages in his opinion that Mr Advocate General Warner had no doubt that decisions by a Member States' administrative authorities would trigger the Article 9 procedure. For example, at page 3628 he said:

"... if, say, a local authority finds that goods which have been brought into its area are defective and dangerous (e.g. because of faulty manufacture) it must be able to stop their sale or distribution without waiting for a national measure." (He then goes on to address the position of the court.)

"I would emphasize the word `decision' which is used in Article 9(1). Its significance is, in my opinion, that a Member State comes under a duty to inform other Member States and the Commission under that provision only when a definitive decision has been taken by a competent authority in that State (whether administrative or judicial) to prohibit the marketing or impede the free movement of goods."

55. Having read and considered the full report of the Cremonini and Vrankovich case, it is my conclusion that, when referring to a "national administrative authority acting on behalf of the State" the European Court was not intending to interpret Article 9 so as to prevent enforcement action at a local authority level, if duly authorized by a Member State, which in turn triggered notification by the Member State to the Commission and to the other Member States.

56. I also bear in mind the antiquity of the Cremonini and Vrankovich decision and I agree with Mr Crow (see paragraph 20.4 of his Skeleton Argument) that, even if the Court had intended to draw a distinction between local and central government, such a distinction would be unlikely to survive after decisions such as Fratelli Constanzo v Commune di Milano [1989] ECR 1839 at paragraph 32 on page 1871, and Commission v Ireland [1988] ECR 4929. However, it would be unsafe to disregard a decision of the European Court of Justice on the basis that later decisions cast doubt on its reliability. I have reached my conclusion on the Cremonini and Vrankovich decision on its own terms.

57. It follows that my conclusion in these proceedings is that Article 9(1) of the Low Voltage Directive does not prevent a triggering decision at a local level - in the United Kingdom, by a local trading standards department. The Community legislators and members of the Court in the Cremonini and Vrankovich case must have known that consumer protection was likely to operate within Member States at a localized level - it would not be possible for all such decisions to operate only at the centre. There is an example from another Member State in the papers before me - see Exhibit CP39 to the witness statement of Christopher Parish. This exhibit refers to the situation in Germany. At page 5 of that document is a reference to the "competent authorities for market surveillance". Market surveillance for technical products is based on the Law of Safety Devices and Appliances which has existed in Germany since 1968. The carrying out of market surveillance, including the operation of the Low Voltage Directive, has to be carried out by the 16 German federal states.

58. Although one would expect there to be a standardization of approach so as to ensure that there is uniformity in the application of the rules within a Member State, it is almost inconceivable that the "policing" of product safety would not be carried out at a local level.

59. It is also clear that the Community legislators intended to leave to each Member State the creation of national structures of responsibility. Of course, the free movement of goods is vitally important to the operation of the Community. However, the safety of electrical and other products on the market is just as important. I share the views of Advocate General Warner in the Cremonini and Vrankovich opinion already referred to, that a local authority must be able to stop the sale and distribution of goods that are defective and dangerous without waiting for national measure which may take months, or even years, to be implemented. I do not take the decision of the European Court in that case, which rejected Advocate General Warner's reference to judicial authorities, to have also rejected his reference to the position of local authorities.

60. I have in the end been able to resolve the central issue "with complete confidence" - although this is not an expression with which I am entirely comfortable when interpreting any piece of legislation, let alone a Community Directive - and therefore a reference to the European Court of Justice is unnecessary: see R v International Stock Exchange ex parte Else Limited [1993] QB 534 at 545D-G.

61. Proceeding on the basis that I am correct on the main argument, the Applicants' other criticisms of the United Kingdom's product safety regime under the 1994 Regulations fall away. I reject the criticisms made by the Applicants of Regulations 5, 6, 14 and 15.

62. In particular, I am satisfied that the requirement for electrical equipment to be safe which appears in regulation 5(1)(a) is not an imperfect transposition of the Low Voltage Directive. I am satisfied that the reference to a free-standing requirement of "safety" in regulation 5 is consistent with Articles 3 and 5 as recognized by the recital in the Directive that it is "possible that electrical equipment may be placed in free circulation even though it does not comply with the safety requirements". The very procedure set out in Article 9 which led in this case to the amendments to the standards in EN60335-2-9 and EN60335-1 is predicated on the basis that goods will be in circulation which comply with the existing requirements of harmonized standards but which nevertheless, objectively considered, are unsafe. Therefore, the Low Voltage Directive anticipates that Member States will need to have in place mechanisms, rules and regulations, which are directed at ensuring that there is an overall requirement that electrical products are safe. Regulation 5(1)(a) is such a regulation.

63. I have one remaining concern, namely the communication to the industry of information relating to local action, and any subsequent Article 9(1) notification to the Commission and to other Member States. Although I accept that the suspension notices issued by Southwark, whether operating only within Southwark or with wider effect, triggered action under Article 9, it seems to me that the existence of a duty of confidentiality (relied on by the Respondent) provides inadequate justification for a process which is unduly secretive. A purpose, perhaps the only purpose, of the Article 9 procedure is to impart information. Article 9(2) anticipates another Member State raising objection to a restriction on free movement. If that objection is to be fully informed, it will, presumably, involve some consultation with manufacturers or importers or exporters or distributors. But those companies may well operate within several countries, including within the United Kingdom. Therefore, it is entirely possible that a trader operating within the United Kingdom could learn of the Article 9 action from another Member State. This does not seem to me to be a sensible state of affairs and a greater degree of openness is surely called for.

64. However, there is nothing in those remaining concerns which could justify any of the heads of relief claimed by the Applicants in relation to the 1994 Regulations, the 1998 decision or the 1999 correspondence. For all these reasons, the application for judicial review is refused.

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Alba Radio Ltd & Anor, R (On The Application Of) v Department Of Trade & Industry [2000] EWHC Admin 423 (30 November 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/423.html Cite as: [2000] EWHC Admin 423

England and Wales High Court (Administrative Court) Decisions