Actis SA, R (on the application of) v The Secretary of State for Communities and Local Government

A national technical requirement may require notification under the Technical Standards Directive because of its practical effects in the regulatory market, even where its formal statutory effect appears unchanged. The relevant question includes whether the change significantly alters the practical scope or application of an existing de facto technical regulation.

A technical regulation adopted without the required notification is inapplicable and unenforceable against an individual. A clear representation by a public authority may create a legitimate expectation where it is objectively understood, relied upon and departure causes detriment. Good administration also requires the authority promptly and openly to correct material mistakes and confusion caused by its own communications.

The claimants manufactured and sold multi-foil thermal insulation. They challenged amendments to the Building Regulations, Approved Documents and BR 443 introduced in 2006, particularly the express linkage of multi-foil products to the hot-box method for calculating thermal performance.

They argued that the changes should have been notified under Article 8(1) of Directive 98/34/EC. They also alleged that the Department had created and frustrated a legitimate expectation by promising an interim arrangement permitting reliance on independent certification, and that its conduct was conspicuously unfair. The central issues were whether notification was required, whether the promise was made and unlawfully frustrated, and whether the Department’s subsequent conduct was unlawful.

1. Notification. The introduction of the 2006 version of BR 443 through the new Approved Documents constituted a de facto technical regulation under Article 11 of Directive 98/34/EC. Its practical effects had to be considered, including its effect on competition, market access, decision-making by building control bodies and the scope of the existing regulatory scheme.

2. The change significantly altered the practical impact and application of the de facto regulation. It made it substantially more difficult for multi-foil manufacturers to rely on comparative in-situ testing and encouraged reliance on the hot-box test. The revision therefore should have been notified under Article 8(1). The court declined to decide separately whether the practical effect also made compliance compulsory, because the significant-alteration ground was sufficient.

3. Following CIA Security [1996] ECR I-2201 and Lidl Italia [2005] ECR I-7865, the failure to notify rendered the relevant technical regulation inapplicable and unenforceable against the claimants. The fact that the underlying standard was European-wide did not remove the notification requirement.

4. Legitimate expectation and conspicuous unfairness. The Department’s letter of 17 February 2006 objectively promised an interim arrangement under which multi-foil manufacturers could continue to rely on independent certification, including existing certification based on comparative in-situ testing, while pursuing CE marking. The claimants relied on that representation and suffered detriment when it was not performed.

5. The Circular Letter of 30 March 2006 did not accurately reflect the promise. Its reference to UKAS accreditation was mistaken and created confusion. The Department then failed to correct the position promptly, clearly and openly. Its later communications added to the confusion and caused further detriment. The requirements of legitimate expectation and conspicuous unfairness were therefore established.

6. The ultra vires arguments failed. The Department had management powers to issue supplementary guidance and to communicate the possibility of reliance on alternative certification. The promise did not direct building control bodies to accept comparative testing, nor did it amend or suspend BR 443. No statutory procedure under section 6 of the Building Act 1984 was required for that management communication.

The court found the claimants’ principal grounds established. Relief and costs were reserved for determination after the parties had considered the draft judgment.

First-instance judicial review proceedings in the Administrative Court. The judgment records no earlier appellate decision.