Energie Est LDA, R (on the application of) v Secretary of State for Energy and Climate Change & Anor

Mutual recognition of product certification extends only to the scope of the certification actually granted. A certificate for a solar collector tested with water did not require recognition of the same collector when used with refrigerant, particularly where no complete-system certification existed.

A voluntary certification scheme may protect consumer confidence by refusing registration until appropriate testing and standards exist. Legitimate expectation cannot extend beyond the proper scope of certification. Procedural fairness generally requires a meaningful opportunity to make representations, but does not necessarily require a right of appeal. The claim was dismissed.

The claimant, a Portuguese manufacturer of solar collectors, challenged a decision of the Microgeneration Certification Scheme Standards Management Group. The decision permitted registration of its collector when used with water or water-glycol, but not when used with refrigerant.

The claimant alleged breaches of European Union law, the Green Energy (Definition and Promotion) Act 2009, legitimate expectation, procedural fairness and Article 1 of the First Protocol to the European Convention on Human Rights. The central issue was whether the claimant’s certification covered use of the product with refrigerant.

1. Claim dismissed. The claimant’s certificate covered the solar collector, not the complete system, and the certificate and test results recorded testing with water. The claimant had no certification of the system under EN 12976.
2. The restriction to use with water or water-glycol gave effect to the existing certification rather than imposing an additional requirement. The mutual-recognition obligation under Directive EC 98/34/EC did not require recognition beyond the scope of the certificate. The claimant therefore failed to establish illegality under European Union law.
3. The statutory purpose of the Green Energy (Definition and Promotion) Act 2009 did not require registration of an insufficiently tested product. The MCS had complementary purposes: encouraging innovation and maintaining consumer confidence. Developing a new standard for thermodynamic systems furthered innovation while refusing inappropriate registration protected confidence in the scheme.
4. No substantive legitimate expectation arose beyond the correct scope of the certification. Earlier registration resulted from the claimant’s understanding of the position, rather than a representation. The hybrid nature of the product also undermined the expectation relied on.
5. There was no procedural unfairness. The claimant had been involved from an early stage and had an opportunity to address the central concern. The MCS was not required to provide an appeal route equivalent to that discussed in R v Life Assurance Unit Trust Regulatory Organisation Ltd, ex parte Ross [1993] QB 17. Given the sharp increase in registrations, the MCS was entitled to act before a new technical category had been created.
6. The Article 1 First Protocol claim depended on the same unsuccessful certification and registration argument. It was unnecessary to determine it separately.