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Harmonisation or divergence? A comparison of French and English product liability rules
SIMON TAYLOR
On the 19 May 1998, ten years after the deadline for transposition, France finally enacted legislation incorporating the 1985 Product Liability Directive into national law.1 These provisions have been added to the Code Civil as articles 1386–1 to 1386–18.2 The aim of this chapter is to consider to what extent French and English product liability laws have been harmonised by the incorporation of the Directive, but it will restrict itself to examining one aspect of this question, namely whether incorporation has had the effect of harmonising the rules relating to the acts generating liability in the two systems.3
The preamble to the Directive declares that harmonisation of national rules is necessary in view of the fact that disparities are liable to distort competition, to affect the free movement of goods and lead to differences in the level of protection offered to consumers against physical injury and
This is an updated and expanded version of an article published in the ICLQ, ‘The Harmonisation of European Product Liability Rules: French and English Law’ 48 (1999) ICLQ: 419.
1Loi n◦ 98–389 du 19 mai 1998. In 1993 France was judged by the European Court of Justice to be in non-compliance with its Treaty obligations (C291/91, 15 January 1993). The further delay by the legislator led to the threat of enforcement procedures by the Court with a fine of up to four million francs per day. It was the threat of this fine that finally led the government to push for the transposition of the Directive (see, for example, Mme Guigou, garde des sceaux, justice minister, debats´ Assemblee´ Nationale 25 mars 1998, compte rendu analytique officiel, p. 21).
2I will consequently refer throughout to the numbering of the provisions in the Code Civil.
3There are a considerable number of other actual or potential differences between English and French law. Many of the key concepts used in the Directive are left without precise definition. Notions such as ‘product’, ‘put into circulation’ and ‘defect’ leave scope for differences in interpretation at national level. Other areas, such as causation, recourse actions, calculation of damages and access to justice, are not dealt with by the Directive and thus provide obvious potential for divergence in approach. See S. Taylor, L’Harmonisation communautaire de la responsabilit´ du fait des produits d´efectueux. Une ´etude comparative du droit anglais et du droit fran¸cais (Paris: LGDJ, 1999).
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damage to goods caused by a defective product.4 The Directive also aims to find ‘a fair apportionment of the risks inherent in modern technological production’.5 It is the difficulty in reconciling differences at national level in the conception of the apportionment of the risks between industry and the victim which led to the final version of the Directive being a compromise measure that includes a number of opportunities for divergence between national laws. Such differences in conception are clearly revealed in a comparison between French and English product liability laws.
This difference of views on the balance between the interests of defendant (industry) and consumer (victim) is in part reflected by certain provisions in the French enactment designed to offer the victim a more favourable position than under the Directive. However, in the recent decision Commission v France,6 the European Court of Justice found France to be in breach of its obligations under the Directive on a number of points. The French parliament will have to introduce amending legislation to comply with the ECJ’s judgement.
However, of more significance is the effect of the European Court of Justice’s ruling in Commission v France and in S´anchez v Medicina Asturiana7 on the interpretation of article 13 of the Directive. As part of the compromise inherent in the Community legislation, article 13 provides that ‘this Directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified.’8 The Directive therefore permits the coexistence of parallel contractual and non-contractual actions. According to European reformers, since the Directive would ensure a more favourable position for the victim than existing rules, it would finish in practice by replacing alternative actions.9 However, as we shall see, the new French law in fact represents in many respects a less advantageous option than the contractual and delictual actions and the victim will often prefer to sue the defendant on the basis of these rules. Since the parallel French rules are more favourable to the victim than their equivalents in English law, the degree of harmonisation will depend greatly on to what extent these
4 Preamble, para. 1. |
5 Ibid., para. 2. |
6Commission v France, 25 April 2002, C52/00 [2002] ECR I-3827.
725 April 2002, C-183/00 [2002] ECR I-3901. That judgment was a preliminary ruling on the question whether a claimant infected by hepatitis C following a blood transfusion could rely on the more advantageous Spanish Product Liability legislation dating from 1984.
8Section 2(6) Consumer Protection Act; article 1386–18 Code Civil.
9EC Bulletin n◦ 11/76, n◦ 30, p. 20.