2. Broad Differences between the Product Liability and Consumer Guarantees Directives

There are four broad differences between these two directives: in their overt purposes; in the parentage of their provisions; in their remedial consequence; and in the problems of integration which they cause.

(p.567) (a) The purposes of the Directives

First, while their declared purposes look similar, the Directives rest on different legal foundations and are significantly different. The Product Liability Directive was made under what was then article 100 of the EC Treaty, under which directives could be made by the Council of Ministers for the approximation of such legal provisions ‘as directly affect the establishment or functioning of the Common Market’.¹² At the time, unanimity was required for such a directive and there was no distinct legal basis in the Treaties for the protection of consumers.¹³ For this reason, while the preamble to the 1985 Directive did set as its purpose the protection of consumers within the EEC, its legal foundation was the distorting effect on the market of different bases of liability of those responsible for unsafe products, a legal basis which formed the main reason for the European Courts view that it required a ‘complete harmonisation’ within its terms.¹⁴ By contrast, by the time of the 1999 Directive, the possible legal bases for such a directive in the Treaty had changed considerably. In particular, the protection of consumers had become recognised as an aim of European action,¹⁵ article 153 providing that ‘in order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting [their] health, safety and economic interests’. One of the mechanisms to be used to do so was the adoption of measures for the approximation of laws which have as their object the establishment and functioning of the internal market under article 95 of the Treaty, which itself refers to the need as regards consumer protection measures to ‘take as a base a high level of protection’¹⁶ and provides for use of a procedure by which the Council responds to Commission proposals and the opinion of Parliament and then generally acts by qualified majority.¹⁷ This was the legal basis on which the 1999 Directive was founded, rather than the counterpart provision of the legal basis for the 1985 Directive, article 94 EC.¹⁸

Nevertheless, both the main purposes set out by the 1999 Directive in its preamble are tied to the furthering of the internal market.¹⁹ The preamble first notices the increasing importance of cross-border consumer transactions, particularly given the internet, and then claims that ‘the creation of a common set of minimum rules of consumer law, valid no matter where goods are purchased within the Community, will strengthen consumer confidence and enable consumers to make the most of the internal market’.²⁰ In this respect, it considers that the:

main source of disputes with sellers concern the non-conformity of goods with the contract [so that it is] appropriate to approximate national legislation governing the sale of consumer goods in this respect, without however impinging on provisions and principles of national law relating to contractual and non-contractual liability.²¹

(p.568) The preamble then summarises the main provisions of the Directive, explaining how they will ensure a ‘uniform minimum set of fair rules governing the sale of consumer goods’,²² this minimal nature of the Directive being recalled explicitly towards the end of the preamble (as well as in its text).²³ Here, therefore, a minimum of consumer protection goes hand-in-hand with the opening of the internal market as it encourages consumer confidence in cross-border transactions, a theme developed in other consumer protection directives which directly concern cross-border consumer contracts.²⁴

The second main purpose of the 1999 Directive, however, is even more closely tied to the internal market, as recital 3 provides that:

Whereas the laws of the Member States concerning the sale of consumer goods are somewhat disparate, with the result that national consumer goods markets differ from one another and that competition between sellers may be distorted.

And recital 4 adds, by way of aside in the course of a passage directed towards the role of consumers in cross-border transactions that ‘the artificial reconstruction of frontiers and the compartmentalisation of markets should be prevented’. The problem with this second main purpose is that it has considerable potential to conflict with the minimal nature of the Directive. For, as was seen in relation to the Product Liability Directive, the converse of a higher degree of consumer protection in some national laws is a higher degree of burdens for business whose transactions are governed by those laws with a concomitant potential for the distortion of competition and the ‘compartmentalisation of markets’.²⁵ Perhaps in this respect, the allusion in the preamble to the 1999 Directive to the possibility of ‘more far-reaching harmonisation’ of consumer protection at the European (and a high) level in the future (notably, as regards the imposition of liability in producers rather than merely sellers)²⁶ suggests that the 1999 Directive was seen as part of a process which starts by concentrating on consumer protection but also sets the foundations of further developments by which a more complete uniformity of protection is to be imposed.

(b) The parentage of the Directives’ provisions

A second contrast between the 1985 and the 1999 Directives may be seen in differences in the legal parentage of their substantive contents, this being reflected in part in the style of their provisions. The 1985 Directive took as its general inspiration a sense of a common practical problem after Thalidomide and the United States law governing liability for products, as qualified and transmitted to the EEC via an earlier draft Council of Europe Convention on Products Liability.²⁷ Apart from this (p.569) primarily non-European influence, the remainder of the 1985 Directive’s provisions have no particular intellectual flavour (except, perhaps, the flavour of compromise), though sometimes its language is distinctly unfamiliar to a common lawyer.²⁸

By contrast, there are at least four distinct influences visible on the form and substance of the 1999 Directive.

First, the 1999 Directive shows the influence of the developing corpus of European legislation in the area of the protection of the economic interests of consumers. This is true of some of its definitions, for example, of ‘consumer’ and ‘seller’,²⁹ its means of ensuring the ‘binding nature’ of its provisions on parties to contracts³⁰ and of permitting Member States to preserve existing rights of consumers or adopting more stringent ones.³¹ This reflects the Commission’s growing sense that there is a need to give a greater coherence and consistency to the European legislation in the area of contract law.³²

Secondly, a very obvious influence on the Directive’s substantive provisions is that of the United Nations Convention on Contracts for the International Sale of Goods of 1980 (the ‘Vienna Convention’).³³ This influence, which has been well documented,³⁴ was particularly important in the adoption by the 1999 Directive of a unitary concept of ‘contractual non-conformity’ to deal with problems which in some civilian systems are dealt with either by their general law of contractual liability or special provisions governing sale (and certain other contracts) stemming ultimately from the aedilitian edicts, and which in the common law are dealt with by a combination of express and implied terms.³⁵ The 1999 Directive itself asserts that a seller’s liability for ‘contractual nonconformity’ of the goods is ‘the traditional solution enshrined in the legal orders of the Member States’,³⁶ but, as I shall explain, the absorption of the traditional liability for latent defects within a new notion of contractual non-conformity became part of the argument in France as to the proper way of implementing the Directive.³⁷ Moreover, criticism can be aimed at use of the Vienna Convention, which was drafted as an exclusive uniform code applicable to commercial contracts in an international context and always subject to contrary intention,³⁸ as the basis for a directive applicable to consumer (p.570) contracts, which would principally apply to domestic transactions, was expressed as a supplement to existing provisions and which would be incapable of exclusion by contrary intention. So while the relationship between the 1999 Directive and the Convention may suggest that courts might refer to the case law interpreting the Convention in their decisions on the Directive, this must be done with great care for while the wording of the Directive may be traceable to the Convention, the Directive’s ambit and purposes within the European legal order are fundamentally different.³⁹

Thirdly, the 1999 Directives provisions reveal quite clearly distinctive common law and civilian influences. So, even more than the Vienna Convention,⁴⁰ the 1999 Directive reveals the influence of common law ways of thinking and even more of techniques of expression. Again, the key concept of ‘contractual conformity’ in article 2 comes to mind, not in its terminology nor in its rather strange use of a rebuttable presumption, but in its content. For under it, contractual conformity possesses a number of elements, each one of which must be satisfied in order for the seller to escape liability.⁴¹ Of these elements, the provision which concerns the goods’ ‘quality and performance’ has a distinctly common law flavour, referring to the reasonable expectations of consumers and then requiring a series of considerations to be taken into account in determining whether or not these are fulfilled in the circumstances.⁴² There are, moreover, three further different appeals to ‘reasonableness’ in the Directive’s provisions.⁴³

On the other hand, the influence of civilian ways of thinking is profoundly apparent in article 3 of the Directive’s ‘rights’ of consumer buyers arising from non-conformity.⁴⁴ As I shall explain, the assumption of this complex provision is not merely that a buyer has a right to performance of the seller’s obligation of contractual conformity, but that the seller has the right to perform.⁴⁵ This reflects a general principle found in both the Romanistic and the Germanic civilian families of private law that contracts are there to be performed and that this means that contractual rules should encourage performance by the parties wherever possible.⁴⁶ In the context of a seller’s liability for (p.571) defects in the property, the Directives infusion with this idea is all the more striking given that here the Romanist tradition (as clearly seen in articles 1641 et seq. of the French Civil Code) treated the seller’s liability for failures in function or quality differently, seeing their primary consequences as being the rescission of the contract or a reduction in the price, at the option of the buyer:⁴⁷ but these rights are placed by the Directive at the second level of remedial response.⁴⁸ For the common law, by contrast, the principle of the binding force of contracts has not been seen as a reason either for holding that specific enforcement of contractual obligations should generally be available or that the law should seek to find ways of allowing a party in default to have a second chance to perform. Quite the contrary, the primary remedy for breach of contract is said to be an award of damages and the injured party to a sufficiently major breach of contract (which is expressly defined to include the breaches of a sellers obligations concerning the quality and fitness for purpose of goods sold) has a right to terminate the contract and recover the price.⁴⁹ For the common lawyer, the buyer has the right to get out of the transaction and the right (and even the ‘duty’) to obtain a substitute performance elsewhere: there is little sense in which the seller has a right to perform.⁵⁰

Fourthly, there is a discernible impact on the terms of the 1999 Directive of commercial practice. While the idea of a ‘European Guarantee’ applicable in principle to all goods purchased in the EU by consumers had earlier been abandoned,⁵¹ one can still see its influence in the shape of the 1999 Directive’s provisions on the ‘legal guarantee’ (which creates rights in consumers by law)⁵² as opposed to its provisions on ‘commercial guarantees’ (provided by the seller or manufacturer and which must be ‘binding’).⁵³ While the Commission has stated that the Directive’s failure to require a right in a buyer to damages reflected the requirements of subsidiarity⁵⁴ its selection of the ‘minimum rights’ for consumers also reflect commercial practice, as most manufacturers’ free guarantees are limited to the recognition of rights of replacement, return or repair of goods and do not include compensation for any loss caused by goods’ failures in quality,⁵⁵ though they do not, as does the Directive, usually provide for any right of rescission at least as such.⁵⁶ The influence of commercial practice in relation to manufacturers’ guarantees may also be seen in the 1999 Directive’s requirement that (p.572) its ‘legal guarantee’ must cover any lack of conformity in new goods which becomes apparent within two years from the date of delivery.⁵⁷ This mirroring of commercial practice in its own ‘uniform minimum level of consumer protection’ rings true with the Directive’s declared purpose of encouraging consumer confidence, the Directive requiring the laws of Member States to conform to commercial best practices.⁵⁸

(c) The imposition of ‘liability’ and its remedial expression

The Product Liability Directive is concerned only with the imposition of liability in damages for harm caused by defective products (and not even harm to products caused by their own defect),⁵⁹ whereas the Consumer Guarantees Directive is concerned with the provision of remedies of repair, replacement, price reduction or rescission of the contract as a result of the defectiveness of goods but not with damages. As will be seen, though, this difference in remedies can become blurred in two ways. The first relates to the way in which the 1999 Directive may be implemented, for its full integration into either the French or the English laws of sale would have an overspill impact on liability in damages, given that this remedy is already available in both systems to sanction qualitative defects.⁶⁰ The second blurring arises from the relationship in English law between the Directive’s new remedies of repair and replacement of the goods and the established use of the law of damages to form the basis for repair or replacement by the buyer at the seller’s expense.⁶¹

There is, moreover, a further difference between the 1985 and 1999 Directives as regards the consequences of a product’s defect or goods’ non-conformity for while the 1985 Directive impacts only on the legal relationship of individual parties (the producer and the person suffering harm caused by the defective product), the 1999 Directive may give rise to intervention by a public authority or a consumer association under the EC Consumer Injunctions Directive of 1998, as failures to fulfil its obligations are included as ‘Community infringements’ where they harm the collective interests of consumers.⁶² The omission of the supply of unsafe products within the meaning of the 1985 Directive from the Consumer Injunctions Directive at first seems odd, but is explicable on the basis that the 1985 Directive is not limited to the protection of consumers and is itself buttressed by successive directives on product safety.⁶³

(d) Problems of integration within national laws

At the time of its promulgation, the 1985 Directive could be seen as the first European legislation dealing with cases traditionally seen as belonging to the private laws of (p.573) Member States.⁶⁴ On the other hand, while its implementation in national laws raised questions of fit with existing general bases of liability, whether provided by civil codes or common law, generally it did not compete with existing special provisions governing the very area which it intended to harmonise.⁶⁵ As a result, it could easily be seen as creating a new special basis of liability, distinct from the ordinary and general law. This was true of French law even though the 1985 Directive was implemented into French law by amendment of the Civil Code (rather than by special loi) and even though many French lawyers saw its special treatment in parallel to existing general bases of liability as objectionable.⁶⁶ Even less was there any problem of formal fit in implementing the 1985 Directive into English law, Part I of the Consumer Protection Act 1987 merely creating a further and special layer of supposedly strict liability for an area already criss-crossed with liabilities, some contractual and some tortious, but none dedicated to liability for products.⁶⁷

By contrast, the 1999 Directive created much more of a problem of fit for both French and English law, given that in both systems a seller’s liability for qualitative defects was already the subject of considerable dedicated regulation, itself closely related to other special areas of regulation. In the French context, as we have seen, there are two main bases of liability (under the garantie légale and for ‘contractual nonconformity’ of the property)⁶⁸ and these are related, on the one hand, to the general law’s treatment of contractual non-performance and, on the other, to rules governing other contracts, such as hire and construction.⁶⁹ In implementing the 1999 Directive, should the French legislature replace the traditional distinction drawn by the law of sale? If so, how should the new law relate to these other areas? Should there be a mere implementation by amendment of the Code de la consommation or a true integration by major amendment of the Civil Code itself? As I shall explain, problems of regulatory fit meant that implementation of the 1999 Directive was seen in some quarters as threatening the coherence of the Civil Code. Problems of the substantive fit of the 1999 Directive into English law were also significantly larger (and more present in people’s minds) than they had been as regards the 1985 Directive, though not as acutely as they were in France. As I shall explain, this was due in part to the substantive similarity of the 1999 Directive’s basic concept of ‘non-conformity’ to existing provisions in section 14 of the Sale of Goods Act 1979 but also to the apparent preparedness of the UK government (here, the effective legislator⁷⁰) to add a further layer to what one French jurist referred to as the ‘juristic “mille-feuille”’.⁷¹ However, the result is far from satisfactory.⁷²

(p.574) 3. Implementation in French Law: Wider Reform on a European model?

The processes by which the 1999 Directive was implemented in French and English law demonstrate a shared concern for the preservation of the integrity of the law in the face of the interpolation into existing legislative patterns of new and to an extent alien concepts and techniques, but they also illustrate differences in the constitutional routes by which implementation is to be achieved and in the nature of the arguments which are adduced in these circumstances. In the case of the 1999 Directive, there is a contrast between a lively French juristic argument and a low-key and essentially technical English debate.

The French constitutional division of law making between Parliament and the executive means that at least the principles of any changes to private law must be contained in parliamentary loi rather administrative règlement⁷³ and certainly all those concerned with implementation in France of the 1999 Directive apparently assumed that it would be effected by loi. The likely involvement of Parliament led to a much greater sensitivity in the government to political opposition, a sensitivity which in fact led to a major reversal of its initial strategy.

The governments first thoughts for implementation of the 1999 Directive attracted considerable opposition and led to an interesting juristic argument, principally between two protagonists, Mlle Geneviève Viney and M. Olivier Tournafond.⁷⁴ Their fundamental disagreement turned on whether to use implementation of the Directive as an occasion for more general reform of the law of sellers liability in the Civil Code or whether merely to enact new provisions in the Code de la consommation for the benefit of consumer buyers, allowing them a choice of claiming instead on the basis of the existing law of contractual non-conformity or the garantie légale. While the more ambitious reform looked at first more likely as it was adopted by the (p.575) report of the ministerially appointed working group, by the middle of 2003 it had become clear that the more limited approach would be preferred, possibly coupled with a light retouching of the Civil Code’s provisions governing the infamous bref délai,⁷⁵ and this was eventually the upshot of the discussion, the Directive being implemented in this more limited way by an ordonnance of 17 February 2005, that is, by government decree under a special power granted by Parliament for this purpose.⁷⁶ However, the wide-ranging arguments adduced by the opposing camps have a wider resonance for the implementation of European legislation affecting private law and are worth exploring.

(a) The Working Group’s proposals

In October 2000, the French Ministry of Justice appointed a working group to advise it on implementation of the 1999 Directive chaired by Mlle Geneviève Viney of the University of Paris Panthéon-Sorbonne and consisting of other distinguished law professors, senior judges, a member of the Bar and senior officials. It reported in May 2002, together with a draft bill.⁷⁷ Its proposals were ambitious, especially given that implementation was due in the same month as the Working Group reported. The fundamental idea was to adopt the 1999 Directives central unitary basis of ‘contractual non-conformity’ for the law of sale generally, applying it to all physical property (whether movable or immovable) whatever the status of the parties to the contract (whether professionnel or consumer) and thereby fusing the existing laws of contractual non-conformity under the ‘general law of contract’ and liability for latent defects under the garantie légate. For this purpose, the Working Group proposed that the definition of conformity (if not its exact wording) found in the 1999 Directive should be adopted,⁷⁸ as should its presumption of the existence on delivery of any failures in conformity appearing in the six months following.⁷⁹

On the other hand, the Working Group considered that the Directive’s scheme was too restrictive of the buyer’s rights and proposed instead to give all buyers an option to return the property and recover the price, as long as the défaut is not minor; to keep the property and return part of the price; or to claim repair or replacement of the property as long as this is possible and does not constitute too great a burden on the seller.⁸⁰ In addition, it proposed that liability in damages should be imposed on (p.576) the basis of the new défaut de conformité: on vendeurs professionnels whether or not they knew of the défaut at the time of delivery; on other sellers only if they knew of it.⁸¹ These proposals therefore echoed the established approach of the garantie légale rather more than the provisions of the Directive or the existing position under the ‘general law’, though the Working Group was careful not to restrict the protection of consumers and so run the risk of breach of the Directive.⁸² Similarly, the proposed reform denied effect to any purported exclusion of any of these rights not merely as against consumer buyers (as required by the Directive), but as against any buyer who was unaware of the defect on delivery and was not in the ‘same speciality’ of business as the seller, again following here the jurisprudence on the garantie légale.⁸³

Moreover, the Working Group refused to adopt the time provisions of the Directive or of existing French analyses and instead proposed that there should be a period of five years within which a buyer of movables must ‘denounce’ any défaut de conformité, this extending to ten years for immovable property or movable property incorporated into an immovable.⁸⁴ So, the 10-year or even 30-year prescription periods of the ‘general law’ of contractual non-conformity and the notorious bref délai of the garantie légale would all be swept away.

Apart from other particular provisions stemming from the Directive itself which were to be implemented by changes to the Code de la consommation,⁸⁵ the Working Group did not propose any wider changes. So, apart from contracts for the supply of consumer goods to be manufactured or produced which the Directive includes,⁸⁶ no changes were proposed for the laws governing other contracts, even in such related areas as construction and hire. The reform was to be applied to all contracts of sale, but as little beyond sale as possible.

(b) The areas of disagreement

However, the Working Group’s proposals were opposed on a number of fronts. They were criticised by some consumer groups on the basis that they would reduce the protection to consumers by forbidding their recourse to the existing ‘general law’ or garantie légale;⁸⁷ by industrialists and small businesses who feared an increase in costs; and by jurists who echoed these criticisms and added a number of specifically juristic and legal cultural grounds. Professor Tournafond soon became the most outspoken juristic critic of the proposals,⁸⁸ and agreed to a request from the Fédération des Industries Electriques, Electroniques et de Communication (FIEEC) to compose an alternative bill implementing the 1999 Directive in a restrictive way by amendment of (p.577) the Code de la consommation,⁸⁹ the Federation and other representatives of industry feeling that ‘their point of view was being neither understood nor even listened to’.⁹⁰

In the debate which ensued, we can identify five distinct areas of disagreement: on the nature of the Directive and the proper pattern of French codification; on the French legal tradition and the Europeanisation of private law; on the value and significance of the classic conceptual distinction between ‘non-conformity’ and ‘latent defect’; on the proper role of freedom of contract as against a social view of contract; and on the practical consequences of either method of reform. Few stones were left unturned.

(i) The nature of the 1999 Directive and the pattern of French codification

Here, there were a number of strands. A first argument used by the Working Group’s opponents focused on the nature of the 1999 Directive as an instrument of consumer protection and asserted that the ‘natural place’ for its implementation was therefore the Code de la consommation rather than the Civil Code, the home of the ‘general law’.⁹¹ True, Germany had implemented the Directive by amendment of the B.G.B., but then Germany has no consumer code!⁹² From this starting point, the argument developed in other directions. So, distinctly unconvincingly, it was said that the amendment of the Civil Code so as to extend the Directive’s protection beyond consumers would make their protection ‘less special’, and in some sense, therefore, ‘denied’⁹³ and it would render the Code de la consommation ‘an empty shell’.⁹⁴

But the Working Group’s proposals were also attacked as being too modest. The more limited (and more convincing) version of this argument noticed that its proposals were restricted (more or less) to the law of sale, whereas the distinction between contractual non-conformity and liability for defects is found elsewhere, notably in the law of hire and construction: to leave these areas unchanged would create ‘incoherence’ in the Civil Code or ‘contamination’ as the new way of thinking leaked into other areas.⁹⁵ Here, then, we see an example of the now classic dilemma for Member States faced with a directive which selects a small but central area of private law for its regulatory attentions: does one introduce a disharmonious element of regulation or permit regulatory overspill?

(p.578) A broader version of this sort of criticism was made by Tournafond, who attacked the proposals for failing properly to address the need for wider reform of the law of obligations, which he saw in terms of a ‘crisis’ in the law of contract and the ‘torment’ of the law of delict.⁹⁶ In his view, the Civil Code should be restored to the purity of its original purposes, leaving special regulation to the specialised codes, in the context, the Code de commerce and Code de la consommation. Of course, implicit in this argument was a sense that such an overhaul of the Civil Code could not be achieved within the time allotted for implementation of the 1999 Directive, which should instead be achieved by amendment of the Code de la consommation, and so leave sleeping ‘the demons of reform of the law of sale at any price which showed themselves in 1985 on the occasion of the implementation of the product liability directive and which ended up by provoking the condemnation of France for breach of its obligations under this directive’.⁹⁷

(ii) The French legal tradition and the Europeanisation of private law

The protagonists’ attitudes to established French legal ways and the harmonisation of European private law were also very different.

The opponents of the proposed reform were accused of regarding as sacred the Code’s venerable provisions governing the garantie légale⁹⁸ and of wishing to retain the distinction between liability for ‘contractual non-conformity’ and for latent defects out of sentiment.⁹⁹ While they denied these accusations,¹⁰⁰ the two sides do appear to have differed on whether French law, and especially the Civil Code itself, should be amended so as to reflect changing social needs or whether it should rather be preserved or perhaps even restored so as to reflect the central liberal values which it first enshrined.¹⁰¹

A similar contrast between a spirit of reform and of tradition may be seen in the extent to which French law was seen as standing to benefit from European developments, whether as represented specifically by the 1999 Directive, or at a more general level by the future results of those working towards a European Civil Code. At the specific level, the Working Group’s basic assumption was that at least the fundamental and unified basis of liability adopted by the 1999 Directive provided the right model for the French law of sale more generally, even if some of its other aspects required improvement.¹⁰² For its critics, the 1999 Directive should not be used beyond the cases where France was obliged to do so, since its unified treatment, which was itself borrowed from the Vienna Convention on international sales of goods, was no more appropriate as a basis for liability in sales in general than it was for consumer sales, as the rights which it provides for buyers are too restrictive.¹⁰³

(p.579) Moreover, the Directive is ‘essentially impregnated with woolly concepts foreign to our legal tradition’,¹⁰⁴ these concepts being perceptibly ‘Anglo-American’.¹⁰⁵

At a more general level, very different attitudes to the wider developments of European private law were revealed. Some of those opposed to the Working Group’s proposed reform clearly saw it as an example of the sort of creeping Europeanisation which must be resisted so as to preserve French legal culture. So, while Mainguy accepted that the Civil Code was not untouchable, this:

does not mean that one ought to change its soul at any moment on the ground that salvation should come from a foreign rule. Let us keep ourselves from these phenomena of juristic acculturation which would wish that any grafted foreign solution should be held up as the paragon of modern legislative technique!…If…the virtues of French law should not be exaggerated, nor should those of Community law.¹⁰⁶

There is more than a little suggestion here of the antipathy to European harmonisation of private law which can be seen in full flood in some French juristic reactions to Professor Von Bar’s Study Group on a European Civil Code.¹⁰⁷ However, those who opposed the Working Group’s proposals did so also on the basis that hasty changes should not be made to the Civil Code while much broader European developments were in the pipeline: the French legislator should wait and see their outcome before doing more than is required by the 1999 Directive.¹⁰⁸

Here, Viney took opposite positions on both fronts. First, in her view, French lawyers should:

adopt an open attitude and display modesty. Let us not believe that we have, by a sort of right of seniority and for eternity, the best Civil Code in the world, even if this Code was, at the time of its promulgation a very fine work of which we are legitimately proud. Let us admit that at the time when it is about to attain its bicentennial, that it is no insult to the Code to examine whether it should not be reviewed with a view to taking into account the changes which have taken place in the relations between parties to contracts.¹⁰⁹

Secondly, the French legislator should not hang fire waiting for further European harmonisation, but should rather join in the movement, retaining what is good but abandoning local perculiarities.¹¹⁰

This aspect of the debate about the Working Group’s proposals reflects, therefore, two very different attitudes to the desirability of a wider impact of European law on French private law. Should one fight one’s legal cultural corner and attempt to marginalise (p.580) the impact of any European legislation which happens to be enacted? Or rather, use the implementation of such European legislation as arises as an opportunity to keep French private law under review so that it can play a proper part in any future wider European developments? For no future European legislator will be impressed by a system of law which retains bad rules out of tradition or sentiment. Without some change, French law may lose its authority at the table of juristic Europe.

(iii) Conceptual distinctions and their technical attributes

But were the existing rules bad? Given that the Working Party had proposed ‘improvements’ to the 1999 Directive’s approach to the relationship between buyers’ rights and the period within which a claim must be brought,¹¹¹ the focus of the French debate centred firmly on the basis of liability.

For the Working Group itself, the abolition of the distinction between contractual non-conformity and latent defects was the central advantage of their proposed reforms.¹¹² This distinction had been the subject of sterile doctrinal controversy¹¹³ and judicial manipulation, and had caused much wasteful litigation.¹¹⁴ The creation of a unified basis of liability founded on the Directive’s definition of ‘non-conformity’ would lead to far greater simplicity from the point of view of the users of the law themselves and this was more important than juristic dogma. ‘Rather than the artificiality of a garden à la française, one should prefer a garden à l’européen, variegated and bushy, mixing up the two actions which are claimed to be essentially different’.¹¹⁵

Those opposed to the proposals responded to this in three ways. First, for them, there is a ‘very real conceptual difference’ between contractual non-conformity and latent defect’,¹¹⁶ between doing something other than what was stipulated and doing something badly, between aliud and pejus.¹¹⁷ Moreover, the classic obligation de conformité is intimately linked to the very subject matter of the contract, its objet,¹¹⁸ and therefore rightly forms part of the ‘general law’ of contractual obligation. On the other hand, liability for latent defects has always been special as it is concerned not with the difference between what a buyer orders and what is delivered, but rather with an ‘anomolie’ which renders the thing sold unfit for normal use.¹¹⁹ For its opponents, it was the members of the Working Group who were being dogmatic, preferring an elegant, unitary regime to a more diverse but practical one.¹²⁰ Secondly, the fact that the classic distinction has proved difficult to draw does not mean that it should be jettisoned: the law is replete with difficult but necessary distinctions.¹²¹ Indeed, (p.581) problems with the distinction arose in practice only when courts were persuaded to attempt to assimilate the two concepts in order to avoid the bref délai:¹²² but if the problem is the bref délai, this should be reformed, rather than tearing up the distinction.¹²³ Thirdly, the existing rules applicable to obligations de conformité and to the garantie légale differ for good reasons. In particular, force majeure applies to the former but not the latter: this difference is justified as a seller who fails to deliver or who delivers late ought to be excused where performance has become impossible; whereas the whole point of a garantie is that impossibility is no excuse.¹²⁴

While Viney countered that such technical differences were not justified either as a matter of logic or fairness and it was therefore right for them to be swept away,¹²⁵ this last argument about the role of force majeure merits further attention. The 1999 Directive itself describes the seller’s ‘obligation of conformity’ so as to include cases where different quantities or types of goods are delivered, and not merely where the stipulated goods are in the wrong condition,¹²⁶ and creates rights in consumers to demand proper performance of the seller’s ‘obligation of conformity’, though only after the seller has had an unsuccessful first go.¹²⁷ What the opponents of the French Working Group’s proposals in effect noticed was that the extension of the framework of the Directive to all sales would mean that these basic obligations of performance of sellers would be subject to the same strictness of regime of liability with no defence of force majeure as is provided for the limited ‘liabilities’ required by the Directive itself for consumer buyers: the extension is to all sales and would include liability in damages. But why should the seller’s obligation to deliver the property as stipulated be treated differently from other contractual obligations? In this light, Tournafond’s accusation that the Working Group’s proposals strike at the logical underpinning of the French law of obligations looks less exaggerated.¹²⁸

(iv) Freedom of contract or social solidarity?

A further important area of disagreement lay in the implications of the Working Group’s proposed reform for freedom of contract. For its opponents, the reform’s extension of the 1999 Directive’s protective rules to non-consumer buyers compromised freedom of contract in an unjustified way, being based on the false assumption that all buyers are at a disadvantage and require protection,¹²⁹ whereas all French businesses want is freedom of contract!¹³⁰ In Tournafond’s view, ‘[s]ocial solidarity does not justify…the introduction into the Civil Code of dirigiste rules of protection’,¹³¹ especially given that French courts already have a number of techniques at their disposal for intervening in bargains.¹³² It is no answer to say (as do the supporters of the Working Group’s (p.582) proposals¹³³) that freedom of contract is preserved because the new provisions would be subject to possible contrary exclusion where the parties were in the same line of business as this just shows the need for a distinct regime for business contracts.¹³⁴

For the Working Group’s supporters, this argument from the supposed equality of business parties reflected a ‘visceral attachment’ to freedom of contract, whereas in reality their freedom is usually one-sided.¹³⁵ Moreover, as a matter of contractual justice, any buyer should have the right to receive from his seller the property in conformity with what was agreed and with what would normally be expected for property of the same type: ‘is this not the essence of a contract of sale?’¹³⁶ The existing law of the time already conformed to this pattern very considerably, whether as a matter of contractual obligations de conformité, the garantie légale, erreur or obligations d’information.¹³⁷ In all, while appeal to freedom of contract by the Working Group’s opponents had a distinctly hollow ring, it nevertheless formed an evocative rallying-cry for the opponents of change.

(v) Practical consequences of the proposed reform

Both sides appealed to the practical consequences of the reform proposed by the Working Group. For its supporters, the creation of a unique basis of liability would simplify the law for the benefit of its users, getting rid of the existing extraordinary complexity’ and helping to reduce unnecessary litigation.¹³⁸ For its opponents, the creation of a new set of remedies for consumer buyers would not be unduly complicated: it would just give them another option.¹³⁹ Moreover, the Working Group’s proposals would increase costs for businesses by introducing new rights for buyers and would have a generally unsettling effect which any major legal change possesses on transactions.¹⁴⁰ In particular, many buyers may prefer the replacement of goods with minor defects which would then be left on their manufacturers’ hands, being difficult to sell as second-hand.¹⁴¹

(c) The outcome of the arguments and the eventual implementing legislation

While the French government’s first stance had apparently been in favour of wider reform as is reflected by its creation of the Working Group, which included representatives of the Ministry of Justice, the combination of legal arguments, technical difficulty and political pressure, both from consumer groups and business, led to a much more modest approach to implementation of the 1999 Directive. (p.583) Such a development had been half predicted by Jourdain, one of the supporters of the Working Groups proposals, who had set out an alternative ‘modest’ reform in addition to changing the Code de la consommation if the wider reforms failed for lack of political will.¹⁴² He suggested changing the Civil Code so as to harmonise the rules on exemption clauses and on periods within which a buyer must sue, which would have the advantage of reducing the significance of the distinction between contractual non-conformity and latent defect, even though it would be maintained.¹⁴³

However, it was a more modest approach to reform which was eventually adopted. The first clear sign of this was the publication in June 2004 by the French government of a projet de loi which provided for implementation of the 1999 Directive by the insertion of new provisions into the Code de la consommation¹⁴⁴ and while this projet de loi was not carried into law, this minimalist approach was also later taken on the Directive’s final implementation by the ordonnance of 17 February 2005.¹⁴⁵ So, unlike the Working Group’s proposals, the final legislation did not extend the range of contracts covered by the new provisions, did not change the hierarchy of rights available to the buyer under article 3 of the Directive, and preserved the buyer’s existing rights under the Civil Code, whether under the garantie légale or any other contractual or extra-contractual basis.¹⁴⁶ On the other hand, one potentially significant reform did survive from earlier proposals, for the ordonnance replaced the bref délai of the garantie légale with a period of two years from the discovery of the defect.¹⁴⁷ While this last change is likely to be generally welcomed by French private lawyers, its amendment of an original provision of the Civil Code by ordonnance will certainly raise eyebrows.¹⁴⁸