1208 CONTRIBUTORY NEGLIGENCE

1208-1 INTRODUCTION

In many situations, it is not only the defendant but also the claimant that may have contributed to the cause of the damage or the extent of it.154 In practice, questions of contributory negligence or risk are of major importance. The reason this importance is not fully reflected in the legal literature is that the questions raised very much depend on the circumstances of the case and are therefore less eligible for more abstract considerations.155

Until the twentieth century, the claimant’s negligence was a so-called full defence and implied that his claim was dismissed. This rule dated back to Roman law although opinions differ as to its details. According to some authors, a claim was dismissed unless the tortfeasor had acted intentionally; according to others, a claim was only dismissed if the victim’s fault was more serious than the tortfeasor’s.156

Currently, the consequence of the victim’s negligence is that he cannot claim compensation for the full loss he suffered: the court will reduce the amount of damages. In France this is known as faute de la victime and it has been developed by the courts, whereas in other countries statutory provisions apply: in England the Law Reform (Contributory Negligence) Act 1945, and in Germany § 254 BGB (Mitverschulden).157

Th e key question is whether the claimant ‘did not in his own interest take reasonable care of himself and contributed, by want of his care, to his own injury’.158 It is considered decisive whether the claimant behaved as could have been expected from a reasonable person in the given circumstances.

Indeed, in England the test of the reasonable person applies not only to the conduct of the defendant but also to that of the claimant. Section 4 of the Law Reform (Contributory Negligence) Act 1945 defines the claimant’s fault as ‘negligence, breach of statutory duty or other act or omission that gives rise to liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.’ The latter part of this

154See on contributory negligence from a comparative point of view: A.M. Honoré, ‘Causation and Remoteness of Damage’, in A. Tunc (ed.), International Encyclopedia of Comparative Law (Tübingen: Mohr, 1983); Ulrich Magnus and Miquel Martin-Casals (eds.), Unification of Tort Law: Contributory Negligence (The Hague/London/New York: Kluwer, 2004); Van Gerven (2000), 689–728; von Bar (2000), N 517–539.

155See for an exception eg Christian Grüneberg, Haftungsquoten bei Verkehrsunfällen, 12th edn. (Munich: C.H. Beck, 2012).

156Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Cape Town: Juta, 1996), 1010 ff. In the United States contributory negligence indicates that the tortfeasor is not liable at all if the victim has done something wrong, whereas comparative negligence indicates that the victim’s negligence leads to a division of the damage. Until 1934, in France the custodian of a thing (Section 303-1) was not strictly liable in the sense of art. 1384 al. 1 CC if the victim had acted negligently: Req. 13 April 1934, DP 1934. I. 41.

157See also Art. 5:102(1) DCFR and Art. 8:101 PETL.

158Viscount Simon in Nance v British Columbia Electric Railways Co. Ltd [1951] AC 601, 611. In the same sense Civ. 2e 8 March 1995, Bull. civ. II, no. 82: ‘avait commis une faute en négligeant de veiller à sa propre sécurité’.

definition refers to the claimant’s lack of care. This means that ‘the standard applied to the claimant in contributory negligence is the same as that of the “reasonable person” in negligence liability generally.’159

In Germany, contributory negligence (Mitverschulden) can be established if the claimant has acted negligently as regards his own interests (§ 254 BGB). The negligence test of § 276 (Fahrlässigkeit) applies accordingly. In principle, this implies an objective test of the victim’s conduct: the conduct of a careful person of average circumspection and capability is decisive (ein sorgfältiger Mensch von durchschnittlicher Umsicht und Tüchtigkeit) (Section 804-2).160

In French law, contributory negligence (la faute de la victime) can also give rise to a lower level of compensation and can even leave the victim empty-handed if the defendant can prove that the victim’s conduct was the only cause of the damage, which means that it must have been unforeseeable and unavoidable (inprévisible et irrésistible).161 Generally, an objective test (l’appréciation in abstracto) applies to the victim’s conduct and it is striking that this even applies to young children (Sections 813-2 and 1208-4).162 Th e defence of faute de la victime is also allowed in cases of strict liability and requires a comparison of the mutual fautes of defendant and claimant.163 In road traffi c accidents, the defence of contributory negligence has been completely abolished expect vis-à-vis drivers (Section 1404-1).

1208-2 CONTRIBUTORY RISK

Not only can the claimant’s negligent conduct lead to a decrease in the damages to be paid by the tortfeasor, also other causes for which the claimant has to answer may reduce the amount of the damages awarded.164 Rules of strict liability for persons (Chapter 16) and for movable objects (Chapter 14) are of relevance here.

In determining the proportion by which the plaintiff ’s damages are to be reduced, attention must be paid to the respective blameworthiness of the parties as well as to the

159Markesinis and Deakin (2008), 897–899; Standard Chartered Bank v Pakistan National Shipping [2003] 1 AC 959 (HL).

160Münchener Kommentar-Oetker (2007), § 254 N 35; Kötz-Wagner (2010), N 113.

161Le Tourneau (2012), nr 1863 and 1889.

162Terré-Simler-Lequette (2009), nr 802; Le Tourneau (2012), nr 1882.

163Le Tourneau (2012), nr 1890 justifies this by stating that comparing the defendant’s strict liability and the claimant’s fault would amount to ‘d’additionner des tomates et des pommes’.

164Article 8:101(1) PETL: ‘Liability can be excluded or reduced to such extent as is considered just having regard to the victim’s contributory fault and to any other matters which would be relevant to establish or reduce liability of the victim if he were the tortfeasor.’ Articles 5:102(3) and 5:102(4) DCFR: ‘(3) Paragraphs (1) and

(2)apply correspondingly where the fault of a person for whom the person suffering the damage is responsible within the scope of [Article 3:202] contributes to the occurrence or extent of the damage. (4) Compensation is to be reduced likewise if and in so far as any other source of danger for which the person suffering the damage is responsible under Chapter 3 contributes to the occurrence or extent of the damage.’ Article 8:101(3) PETL: ‘The contributory conduct or activity of an auxiliary of the victim excludes or reduces the damages recoverable by the latter according to para. 1.’

causative potency of their acts or omissions . . . after all, if attention were not paid to causative potency, a careless plaintiff would recover nothing from a defendant who was free from fault but strictly liable.165

In relation to liability for persons, consider for example employers’ liability for the conduct of their employees (vicarious liability) (Section 1606).166 If an employer suffers damage caused both by a third party and his own employee, the conduct of the employee may be imputed to him and this may lead to a reduction of the damages he is entitled to vis-à-vis the third party. This possibility is less disputed in cases of property loss and pure economic loss than in cases of death and personal injury.167 In Germany, the BGH analogously applies § 278 BGB (contractual liability for persons) to contributory negligence. This means that the conduct of someone with whom the victim has a contract can be attributed to the victim as contributory negligence. The requirement of a contract is interpreted broadly because organs of legal bodies are also considered to fall within the ambit of this rule.168

In addition, rules of strict liability for things (animals, motor vehicles) may be relevant within the framework of contributory negligence but this is a much more disputed area.169 In Germany and England, rules of strict liability for animals are taken into account. If, for instance, if someone suffers damage caused by the tortfeasor and his own horse (for which he is strictly liable towards third parties), the latter will be a ground for lowering the amount of damages to be paid by the tortfeasor regardless of the claimant’s negligence.170

Another example provides the German strict liability of the owner or keeper of a motor vehicle (§ 7 StVG, see Section 1404-2). This strict liability can be attributed to him as contributory negligence if he himself has suffered damage in a road traffic accident. Generally, this is the attribution of the Betriebsgefahr (operational risk) of the vehicle.171 In many cases, the attribution of the operational risk varies from 20 per cent to 33 per cent.172

In France, the victim’s contributory negligence is not influenced by the strict liability for things (art. 1384 al. 1 CC). Here, only the victim’s fault (faute de la victime) can amount to contributory negligence.173 Th is means that, if the defendant’s things are involved in the accident, this does not amount as such to contributory negligence. This is not surprising because French law has a general rule and a number of specific rules of

165Weir (2000), 244.

166Carberry v Davies [1968] 1 WLR 1103 (CA). Winfield and Jolowicz (2010), para. 6.51.

167Von Bar (2000), N 533–535.

168Münchener Kommentar-Oetker (2007), § 254 N 140.

169Von Bar (2000), N 532.

170Germany: BGH 6 July 1976, BGHZ 67, 129 = NJW 1976, 2130 (strict liability for animals: § 833). England: Animals Act 1971, s. 10(1) referring to ss 2–4; see on this Act, Section 1402.

171BGH 23 June 1952, BGHZ 6, 319 = NJW 1952, 1015; BGH 13 April 1956, BGHZ 20, 259, on which see Markesinis and Unberath (2002), 839–841.

172Münchener Kommentar-Oetker (2007), § 254 N 114.

173Civ. 2e 21 July 1982, D. 1982. 449, comm. Larroumet, JCP 1982. II. 19861, comm. Chabas, RTD civ. 1982, 807, obs. Durry (Desmares); compare Le Tourneau (2012), nr 1869–1873.

strict liability for things, which are particularly applicable in cases of accidents. Attributing all strict liability rules to the victim’s conduct would put most claimants in an uncomfortable position.

1208-3 SYSTEMATIC OBSERVATIONS

Contributory negligence does not imply that the claimant owes the tortfeasor a duty or that he is under an enforceable duty to take care of his own interests. The claimant’s duty is, in fact, what the Germans like to call an Obliegenheit. This is a legal position, not being a right or a duty, which someone can improve or lose by his own behaviour. Hence, in the case of the victim’s lack of care regarding his own interests, contributory negligence means he cannot call on the other party to compensate him in full.174

Clearly, in order to qualify for contributory negligence a causal connection has to be established between the claimant’s negligence or risk, on the one hand, and the damage, on the other (Chapter 11). A driver who is under the influence of alcohol and is hit by another vehicle is not, for this sole reason, contributorily negligent. Lord Atkin stated: ‘If the claimant was negligent but his negligence was not a cause operating to produce the damage there would be no defence. I find it impossible to divorce any theory of contributory negligence from the concept of causation.’175

Th e amount of compensation can be reduced not only if the claimant contributed to the accident but also if he contributed to the extent of his damage. If a passenger did not wear a seat belt, he did not contribute to the accident but he may have contributed to the damage. In such a case, the amount of compensation to which he is entitled may be reduced.176 For the same reason, contributory negligence can be invoked against a motorcyclist who has contributed to his damage by not wearing a helmet.177

Generally, the claimant has a duty to restrict the damage as far as this can be reasonably expected.178 If he negligently does not take reasonable measures to get medical help,

174Von Bar (2000), N 518; Kötz-Wagner (2010), N 742a–743. BGH 18 April 1997, BGHZ 135, 235, 240; Davies v Swan Motor Co. [1949] 2 KB 291, [1949] 1 All ER 620; Dawrant v Nutt [1961] 1 WLR 253; Civ. 2e, 8 March 1995, Bull. civ. II, no. 82, D. 1995. Somm. 232, obs. Delebecque. See also the critical remarks by Le Tourneau (2012), nr 1872, arguing that, considering that most tortfeasors are insured against liability, the claimant is the only person who personally bears the consequences of his negligent conduct: ‘Paradoxalement, seule la victime va subir personnellement les conséquences de ses fautes qui ont contribué à la réalisation du dommage.’

175Lord Atkin in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 165. See also Lord Denning in Davies v Swan Motor Co. (Swansea) Ltd [1949] 2 KB 291, [1949] 1 All ER 620.

176See for England Froom v Butcher [1976] QB 286 in which Lord Denning laid down three guideline deductions: 25 per cent where wearing a seat belt would have made all the difference, 15 per cent where it would have made a considerable difference, and no deduction where the failure made no difference. These guidelines were challenged but confirmed by the Court of Appeal in Stanton v Collinson [2010] EWCA Civ 81. See for Germany BGH 9 February 1965, NJW 1965, 1075; BGH 30 January 1979, NJW 1979, 980; BGH 20 March 1979, BGHZ 74, 25; BGH 2 February 1982, BGHZ 83, 71; BGH 29 September 1992, BGHZ 119, 268.

177O’Connell v Jackson [1972] 1 QB 270; Capps v Miller [1989] 1 WLR 839, [1989] 2 All ER 333.

178Von Bar (2000), N 530.

to follow medical instructions, to look for other work, or to take courses to increase his opportunities, he may lose his right to claim full compensation for his damage. It depends on the circumstances of the case as to what can reasonably be expected from the victim. For example, a woman who is pregnant as the consequence of a negligent vasectomy can restrict her damage by way of an abortion but it is generally admitted that there is no obligation for her to do so, not even if such an abortion can be carried out within the legal period (Section 707-1). In a similar vein, a person is not obliged to undergo a major operation, particularly if the outcome is uncertain. French law, in particular, goes a step further by accepting that even the refusal to undergo a minor operation does not lead to contributory negligence.179 More recently, the Cour de cassation held, as a general principle, that a victim is not required to limit the damage or injury in the interests of the liable party.180 Th is is another sweeping general principle (grand principe) for which the court is well known (Sections 301-3 and 610-4).

Contributory negligence is the weaker version of the assumption of risk that was discussed in Section 809-3. It was set out that if a passenger knows that a driver is drunk and an accident occurs, legal systems do not allow the driver to claim that the passenger assumed the risk. The driver cannot say ‘that the fact of his passenger travelling in a vehicle in circumstances in which for one reason or another it could be said that he had willingly accepted a risk of negligence on the driver’s part relieves him of liability for such negligence.’181 However, he may invoke contributory negligence, which will generally be estimated at around 20 per cent.182 Th e ECJ has held that reduction of the compensation in such cases must not be disproportionate (see Section 1405-2).183 In France, the percentage will generally be zero, since according to article 3 loi Badinter the passenger’s right to damages is only affected if he committed an inexcusable fault (faute inexcusable) and this fault was the sole cause of the accident (Section 1404-1).

If the tortfeasor has acted intentionally, he will generally not have a contributory negligence defence.184 For England, this follows from the fact that the Law Reform

179Von Bar (2000), N 531, with further references. This case law seems to be particularly triggered by art. 16-3 CC, enacted in 1994 and protecting the integrity of the body (l’intégrité corporale).

180Civ. 2e, 19 June 2003, JCP 2004. I. 101, note Viney, D. 2004. 2326, note Chazal, ETL 2003, 171 (Moréteau).

181Beldam LJ in Pitts v Hunt [1991] 1 QB 24; see Road Traffic Act 1988, s. 149.

182Winfield and Jolowicz (2010), para. 25.10. Owens v Brimmell [1977] QB 859, [1976] All ER 765 (contributory negligence of the passenger of a drunken driver); Nettleship v Weston [1971] 2 QB 691 (CA) (contributory negligence of someone who gives a friend driving lessons). See, however, also Morris v Murray [1991] 2 QB 6, [1990] 3 All ER 801 (drunken pilot), an exceptional case in which the court dismissed the claim of a passenger of a crashed aeroplane on the basis of volenti non fit injuria (Section 809-4); Lunney and Olipant (2010), 287–292. See for Germany Kötz-Wagner (2010), N 744.

183ECJ 30 June 2005, Case C-537/03, ECR 2005, I-5745 (Candolin and Others v Pohjola and Others); ECJ 19 April 2007, Case C-356/05, ECR 2007, I-3067 (Farrell v Whitty), on which Section 1405-2.

184Lord Rodger in Standard Chartered Bank v Pakistan National Shipping Corp. [2003] 1 AC 959 (HL): contributory negligence is no defence where the defendant intended to harm the claimant. Compare Section 1101 on the consequences of intention for establishing the causal chain.

(Contributory Negligence) Act 1945 does not apply to bribery,185 deceit,186 conversion, or intentional trespass to goods.187 Moreover, the Court of Appeal has held that contributory negligence cannot be raised as a defence in claims for assault and battery.188 French case law reveals the same picture.189 Th is means that a thief cannot invoke the contributory negligence of a person who has been robbed, for instance because the latter did not lock his belongings in a safe place. The opportunity may have made the theft

possible but this does not provide him a contributory negligence defence.

In line with this case law, it is generally held that the contributory negligence of the claimant is not taken into account if, compared to this, the tortfeasor’s negligence was overwhelming.190 A deviation from this case law may be accepted if the claimant provoked the defendant’s intentional conduct. In such a case, the amount of damages may be reduced on the basis of the contributory negligence of the provoker.191

If the claimant acted intentionally, this will usually lead to 100 per cent contributory negligence and, hence, dismissal of his claim. However, this will be different if the scope of the defendant’s duty was to protect the claimant against himself. In such a case, the claimant’s contributory negligence may even be excluded. An English case concerned someone suing the authorities for failure to protect him against his gambling addiction. The court held that lifestyle choices that created the addiction should not be considered part of the contributory negligence inquiry in cases where the defendant’s negligence consisted of failing to treat or to take account of precisely these conditions.192

A similar decision can be found in France, in the case of a lady who had applied to be registered on the list of those barred from gambling, so that she would not be admitted to gambling houses. She continued to visit the casino at La Baule, sustaining substantial losses, and sued the casino for damages. The Cour de cassation agreed with the claimant that the casino was at fault, having taken no steps whatsoever to enforce the claimant’s exclusion from gaming houses.193

Whereas until the twentieth century, the claimant’s negligence led to dismissal of his claim (Section 1208-1), today the opposite occurs in situations where the claimant’s negligent conduct does not even lead to a reduction of his right to compensation. Particularly in Germany and France, victims of road traffic accidents are strongly protected against the consequences of their own mistakes (Sections 1404-1 and 1404-2). This reflects the compensation function tort law has increasingly gained over the course of the past decades (Section 1202-1).

185Corporación Nacional del Cobre de Chile v Sogemin Metals Ltd and Others [1997] 2 All ER 917.

186Alliance v Leicester v Hamptons [1993] NPC 19.

187Von Bar (2000), N 521.

188Co-operative Group Ltd v Pritchard [2011] EWCA Civ 329, [2012] QB 320.

189Crim. 4 October 1990, D. 1990. IR. 284; Crim. 16 May 1991, D. 1991. IR. 220; Civ. 26 February 1991, Bull. civ. I, no. 73; Civ. 16 June 1992, D. 1993. Somm. 212; Viney-Jourdain (2006), nr 430.

190In the same sense, Art. 5:102(2)(a) DCFR.

191M. Martín-Casals, Principles of European Tort Law, Text and Commentary (Vienna/New York: Springer, 2005), 134–135.

192St George v Home Office [2009] 1 WLR 1670.

193Civ 2e, 30 June 2011, Bull. civ. II, no. 146, ETL 2011, 228 (Moréteau).

1208-4 CHILDREN

Whether a young victim can be contributorily negligent is a similarly delicate issue as the question whether children can be liable for damage they have caused by their own conduct (Section 813). In most jurisdictions the possibility of invoking contributory negligence against a young victim is limited.194

In Germany, children under the age of 7 cannot be contributorily negligent. For children under the age of 10, the same holds true for accidents involving motor vehicles, railways, or ski lifts. Children under the age of 18 cannot be contributorily negligent if they have insufficient understanding of their behaviour (lack of Einsichtsfähigkeit) (§ 828 III jo. § 254). If they do, their conduct will be compared to that of someone of the same age. Unconscious persons and the mentally incapacitated cannot be contributorily negligent on the basis of § 827 jo. § 254 BGB, provided they were unable to understand the negligence of their conduct or to act accordingly. In such situations, § 829 applies: this means that, despite lack of accountability, a child or an incapacitated person can be contributorily negligent if equity so demands (Section 813-3).195

English law does not apply the German threshold (does the child have sufficient understanding of its behaviour?) but it does use the child of the same age as the fictitious person with whom the child’s conduct is being compared to assess its contributory negligence.196 Th ere is no fixed age under which a child cannot be contributorily negligent.197 Th e starting point is whether the child ‘is of such an age as reasonably to be expected to take precaution for his or her own safety’.198 Th e test is pragmatic rather than entirely objective since the courts may also take into account the child’s individual circumstances and incapacities.199

French case law follows a remarkable track by comparing the conduct of the child victim to that of the good family father (the bon père de famille), as is the case if the child himself causes the damage (Section 813-2).200 Th is case law has been criticized because it too easily establishes the child’s contributory negligence, which means

194See in more comparative detail: Miquel Martin-Casals (ed.), Children in Tort Law, Part II: Children as Victims (Vienna/New York: Springer, 2007).

195BGH 24 January 1969, NJW 1969, 1762; BGH 26 June 1973, NJW 1973, 1795; Münchener KommentarOetker (2007), § 254 N 34.

196See eg Gough v Thorne [1966] 3 All ER 398, [1966] 1 WLR 1387 (no contributory negligence of a 13-year- old girl). See also, however, Morales v Ecclestone [1991] RTR 151 (75 per cent contributory negligence of an 11-year-old boy dashing in to the road). See further Occupiers’ Liability Act 1957, s. 2(3)(a): ‘an occupier must be prepared for children to be less careful than adults.’

197Th e Pearson Commission advised a minimum age of 12: the Royal Commission on Civil Liability and Compensation for Personal Injury, Vol. 1 (Cmnd 7054, 1978), 1077.

198Compare Lord Denning in Gough v Thorne [1966] 3 All ER 398, [1966] 1 WLR 1387.

199Daly v Liverpool Corp. [1939] 2 All ER 142.

200Ass. plén. 9 May 1984, JCP 1984. II. 20255, comm. N. Dejean de la Bathie, D. 1984. 525, comm. F. Chabas, RTD civ. 1984, 509, obs. J. Huet; in the same sense, Civ. 2e 28 February 1996, D. 1996. 602, JCP 1996. IV. 942.

that the child only receives compensation for part of his damage. It is argued that the test for the tortfeasor’s conduct should not be the same as the one for the victim’s conduct.201 However, the Cour de cassation does not seem inclined to change its view.202

Th e situation differs under the loi Badinter as regards road traffic accidents, on the basis of which the contributory negligence of children is almost completely excluded (Section 1404-1). Also, the contributory negligence of the young (under 16), old (over 70), and the incapacitated (more than 80 per cent) is no longer a defence in traffic accidents, provided that these persons are not themselves drivers of the motor vehicle. As has been pointed out, the same rule holds for Germany for children up to the age of 10. England does not have a hard-and-fast rule in this respect but it has been said: ‘Damages of traffic victims may not always be reduced for contributory negligence if the victims are very young children or old persons.’203

Th is brief overview shows different opinions in relation to the age until which children should be immune from contributory negligence. In Germany, this applies to children up to the age of 7 and in many cases until the age of 10. In France, a specifi c rule applies to road traffic accidents under which persons up to the age of 16 are fully protected. In England, however, children are not protected as a general rule but the more subjective approach to the child’s conduct is much more favourable to its position than the French objective approach in cases other than traffic accidents.

Guido Calabresi, one of the fathers of law and economics in accident law, wrote in 1970:

In deciding who should be liable, the fault system pays little attention to which of the possible categories of costbearers is most likely to be aware of the risk involved. As a result, although it may seem to choose a party that can avoid the accident cheaply, it actually often picks one that will bring about very little cost avoidance.204

Th is is particularly the case if they are not able to avoid the accident. Although children seem to be the cheapest cost avoiders (look out, stay away), they are generally not aware of the potential risks or they are not able to act accordingly. Hence, liability in these cases ought to be with the adult who possesses the required knowledge and ability.

201Viney, ‘La réparation des dommages causés sous l’empire d’un état d’inconscience: un transfert nécessaire de la responsabilité vers l’assurance’, JCP 1985. I. 3189; Terré-Simler-Lequette (2009), nr 732.

202Civ. 2e 19 February 1997, Bull. civ. II, no. 53 (contributory negligence of a child who approached a moving swing). However, there are also decisions pointing in another direction: see eg Civ. 6 March 1996, D. 1997. 93, comm. Lebreton (no contributory negligence of a 15-year-old boy who, despite strong warnings, started a descent in the mountains and was injured).

203Gough v Thorne [1966] 3 All ER 398, [1966] 1 WLR 1387; Lunney and Oliphant (2010), 313–314.

204Guido Calabresi, The Costs of Accidents (New Haven, Conn.: Yale University Press, 1970), 244–245.

D DAMAGES AS AN EFFECTIVE R EMEDY

IN SUPR ANATIONAL LAW

1209 EUROPEAN U NION

1209-1 MEMBER STATE LIABILIT Y

Th e Member State liability developed in the so-called Francovich case law requires the conferment of rights on individuals, a sufficiently serious breach of EU law, and a direct causal link between the breach and the damage sustained (Section 206). Unlike in cases regarding the liability of an EU institution (Section 1203-4), remedies, particularly damages, are not provided by EU law but have to be provided by national law:

it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have [under] . . . Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature.205

Hence, national remedies need to be in line with the principles of effectiveness and nondiscrimination. The principle of effectiveness also requires that reparation ‘for loss or damage caused to individuals as a result of breaches of EU law must be commensurate with the loss or damage sustained so as to ensure the effective protection for their rights.’206

Th e consequences of this principle were fleshed out in Brasserie and Factortame III where the Court held: ‘National legislation which generally limits the damage for which reparation may be granted to damage done to certain, specifically protected individual interests not including loss of profit by individuals is not compatible with Community law.’207

For example, the principle of non-discrimination implies that in English law it must be possible to award exemplary damages (Section 1202-3) pursuant to claims or actions for breach of EU law if such damages may be awarded pursuant to similar claims or actions founded on domestic law. At the same time, the Court held that the German requirement of Drittbezogenheit (Section 1803-2) is not compatible with Francovich liability as is the English tort of misfeasance in public office (Section 1804-6) for not providing an effective remedy.

205ECJ 16 December 1976, Case 33/76, ECR 1976, 1989, 1997–1998 (Rewe-Zentralfinanz eG and Rewe Zentral AG v Landwirtschaftskammer für das Saarland); see also ECJ 7 July 1981, Case 158/80, ECR 1981, 1805 (Rewe v Hauptzollamt Kiel).

206ECJ 5 March 1996, Joined cases C-46/93 and C-48/93, ECR 1996, I-1029 (Brasserie du Pêcheur and Factortame III), para. 82.

207ECJ 5 March 1996, Joined cases C-46/93 and C-48/93, ECR 1996, I-1029 (Brasserie du Pêcheur and Factortame III), para. 90.

1209-2 COMPETITION L AW

Over the past decade, effective remedies have been at the centre of policy discussions in the area of competition law. The idea that competition rules could not only be enforced by public law instruments (particularly administrative sanctions such as fines) but also by private law instruments (particularly damages), was bolstered by the ECJ’s decision in Courage v Crehan in which a private party sought redress for infringement of competition law rules and, more particularly, in the Manfredi decision in which the Court set out the requirements for liability in such a case (apart from causation and damage, the sole infringement of a competition rule suffices) and considered that not only actual loss can be recovered but also loss of profit (Section 205-4).

Since then, the European Commission has been trying to enhance the possibilities for private enforcement of competition law. This aim was linked to the reform of the European competition rules by Regulation 1/2003, which decentralized enforcement powers from the Commission to the national competition authorities and the national courts. At the same time, the Commission has emphasized the importance of private enforcement of competition law by individuals and companies who suffer damage from unfair competition, for example by concerted practices.208

In 2004, the Commission published a study which found that levels of private enforcement through damages claims in Europe were very low. The study also found that not only is there ‘total underdevelopment’ of actions for damages for breach of EU competition law, but also that there is ‘astonishing diversity’ in the approaches taken by the Member States. Among the obstacles to the wider use of private enforcement actions were limitations on the forms of compensation available, the need to prove negligence or intention, and high standards of proof.209

Based on the results of the study, the Commission published a Green Paper to identify potential ways forward for encouraging private enforcement of EU competition law. The assumption is that the threat of such litigation can have a strong deterrent effect and result in a higher level of compliance with the competition rules.210

208See for different views on the value and effectiveness of private enforcement of competition law: Wouter P.J. Wils, ‘Should Private Antitrust Enforcement Be Encouraged in Europe?’, World Competition 26 (2003), 473–488 (public enforcement is superior to private enforcement) and Clifford A. Jones, ‘Private Antitrust Enforcement in Europe: A Policy Analysis and Reality Check’, World Competition 27 (2004), 13–24 (private enforcement has great value as a supplement to public enforcement and as the primary means of compensating victims of infringements whose interests are to be protected by national courts).

209Denis Waelbroeck, Donald Slater, and Gil Even-Shoshan, Study on the Conditions of Claims for Damages in Case of Infringement of EC Competition Rules (Brussels, 31 August 2004), <http://europa.eu.int/comm/ competition/antitrust/others/private_enforcement/index_en.html>. See also Thomas M.J. Möllers and Andreas Heinemann (eds.), The Enforcement of Competition Law in Europe (Cambridge: Cambridge University Press, 2008).

210Green Paper, Damages Action for Breach of the EC Antitrust Rules, 19.12.2005, COM(2005) 627 final. See eg Thomas Eilmansberger, ‘The Green Paper on Damages Actions for Breach of the EC Antitrust Rules and Beyond: Reflections on the Utility and Feasibility of Stimulating Private Enforcement Through Legislative Action’, CMLR 44 (2007), 431–478.

Th ree years later, in 2008, a White Paper was published in which the Commission identified a number of issues for further consultation. These issues regard, inter alia, collective redress (as the damage individuals and companies suffer from competition infringements is usually of low value and scattered), the fault requirement (the role of which the Commission would like to limit), and the quantification of damages (for which the Commission would like to develop a practical framework).211 Th ere are still many questions to be answered before the Commission will be able to propose legislation to bolster private enforcement of competition law.

It remains to be seen how effective the action for damages will be in enforcing rules of competition law.212 Th e key problem is that individuals and companies negatively affected by an infringement of Article 101 or 102 TFEU have to cross high hurdles before liability can be established. Although it is conceivable that they may be enabled to rely on the assistance of competition authorities to prove the existence of a restrictive agreement or a concerted practice, or of an abuse of dominant position, this will not be the case for the proof of causation or the quantification of loss sustained. It will be particularly difficult to prove that the infringement has caused damage to the individual person or company and, if so, how much.213 Hence, additional EU legislation will be necessary to ease the claimant’s burden of proof: for example, legal presumptions as regards requirements for liability, or an obligation for the defendant to disclose information about its business practices.214

1209-3 OTHER AREAS

Not only in Member State liability and competition law but also in many situations, it is for the national laws of the Member States to provide an effective remedy for the violation of an EU rule. Think, first, of the violation of Treaty provisions such as Article 157 TFEU relating to equal pay for male and female employees,215 and the free movement Articles 45 (persons) and 56 (services).216

An example of the latter is the Laval case217 in which Laval, a Latvian company, employed Latvian employees on a building site in Sweden on the basis of a collective

211White Paper, Damages Actions for Breach of the EC Antitrust Rules, 2.4.2008, COM(2008) 165 final.

212Regulation 2003/1, OJ L 001, 4 January 2003, 1–25.

213See C.D. Ehlermann and I. Atanasiu (eds.), European Competition Law Annual 2001: Effective Private Enforcement of EC Antitrust Law (Oxford: Hart, 2003). See also Sections 1106 and 1203-4 on causation and damage.

214Jürgen Basedow, ‘Private Enforcement of Article 81 EC: A German View’, in C.D. Ehlermann and I. Atanasiu (eds.), European Competition Law Annual 2001: Effective Private Enforcement of EC Antitrust Law

(Oxford: Hart, 2003), 137–145.

215ECJ 8 April 1976, Case 43/75, ECR 1976, 455, 476 (Defrenne v Sabena), para. 39.

216ECJ 12 December 1974, Case 36/74, ECR 1974, 1405 (Walrave and Koch v Association Union Cycliste Internationale and Others), para. 17; ECJ 6 June 2000, Case 281/98, ECR 2000-I, 4139 (Roman Angonese v Cassa di Risparmio di Bolzano SpA), paras. 31–36.

217ECJ 18 December 2007, Case C-341/05, ECR 2007, I-11767 (Laval un Partneri v Svenska Byggnadsarbetareforbundet); see also ECJ 11 December 2007, Case C-438/05, ECR 2007, I-10779 (International Transport Workers’ Federation v Viking Line ABP).

agreement concluded in Latvia. Swedish trade unions took industrial action to force Laval to sign the applicable Swedish collective agreement. Swedish law, the Lex Brittania, did not allow collective industrial action to be taken for replacing an existing collective agreement, but it allowed such action if the agreement, as was the case here, was concluded outside Sweden. Laval took legal action against the trade unions. During the proceedings, the Swedish court referred preliminary questions to the ECJ which held that the Swedish law was an infringement of the freedom of services under Articles 56 and 57 TFEU. After the case was sent back to the Swedish court, it held the trade unions liable for the damage suffered by Laval. Hence, a private legal entity (the trade union) was held liable for breach of EU law: although the trade unions were exercising their rights under national law, this national law infringed EU law.218

Second, the issue of an effective remedy may crop up in respect of the violation of secondary legislation (Regulations and Directives). If such legislation does not provide an effective remedy, national law must provide one. A remedy may be not only the payment of damages but also an injunction of some form. The Muñoz case concerned a trader who, during civil proceedings, sought the enforcement of EU food quality standards against a competitor. The ECJ held that compliance with these food quality standards ‘must be capable of enforcement by means of civil proceedings instituted by a trader against a competitor’. The Court considered that tort law claims strengthen the effet utile of quality standards, and that they supplement enforcement by public authorities and discourage practices, ‘often difficult to detect, which distort competition’.219 This way, the ECJ acknowledged the role of tort law as a source of remedies (damages) that could help to enforce secondary EU legislation.

Laval and Muñoz imply that the national laws have to provide remedies (in particular actions for damages and injunctions) for the private enforcement of EU law and that these remedies need to be effective and non-discriminatory. This may force a reinterpretation of some parts of the national laws and other parts may even be disapplied, as in Laval.220

A final illustration relates to the Product Liability Directive, Article 9 of which covers pecuniary loss caused by death, personal injury, and loss of private property (Section 1409). In the Veedfalds case, the ECJ ruled that it is up to the individual Member States to determine according to their national law the legal consequences of death, personal injury, and damage to private property. At the same time, it required that full and proper compensation for persons injured by a defective product must be available. The application of national rules must not impair the effectiveness of the Directive and the national

218See also Katherine Apps, ‘Damages Claims Against Trade Unions After Viking and Laval’, ELR 34 (2009), 141–154.

219ECJ 17 December 2002, Case C-253/00, ECR 2002, I-7289 (Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd), paras. 30–31.

220See eg Walter van Gerven, ‘Bridging the Gap Between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies’, CMLR 32 (1995), 679–702; Gerrit Betlem, ‘Torts, A European Ius Commune and the Private Enforcement of Community Law’, Cam LJ 64 (2005), 126–148.