Voluntary “New Approach” Technical Standards are Subject to Judicial Scrutiny by the CJEU! – The Remarkable CJEU judgment “Elliott” On Private Standards

Abstract

The CJEU has developed some remarkable answers on pertinent questions of EU private law with a view on “new approach” standards. “New approach” standards are “acts” in the meaning of Art. 267(b) TFEU by virtue of their public law effect and EU law framing. “New approach” Directives regulate only market access at the border, not behind the border, where Member State regulations apply. For this reason, EU law also does not require transferring the conformity presumption pars pro toto to the interpretation of rules from national contract law. I will illustrate the impact of this judgment on access to justice, the making of EU private law and transnational contract law, liability of standardisation organisations and on the private standards debate in WTO law.