I don't see what the FIA can do about it, Both cars have passed the tests.
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It passes the one load test of 500n (50kg) but there are two other rules to take into account, one that states the min distance to the floor (85mm if memory serves) and another cover all note about any piece of aero that moves excessively while the car is moving to be counted as a movable aero device.
The DBR and ferrari wings only passed one test, mclaren and merc are seeking clarification about the two other parts of the rule, we have seen the DBR wing almost scraping the floor which suggests that it isnt x distance off the floor anymore.