(D) The eu dimension to law and fact

The EU seeks to achieve its purposes of economic and social integration in a number of different ways: through the invocation of broad EC principle (for example, in its principle of non-discrimination on grounds of nationality), through taxation policy, through financial subsidies, institutional or administrative initiatives, or the recommendations and guidance of ‘soft law’. However, the imposition of targeted legal requirements by the issuing of directives remains a central mechanism for the working out of its policies of integration. In this light, while the two EC directives which have been the focus of this study seek to ‘harmonise’ or ‘approximate’ the laws of the Member States, this is not their fundamental purpose; their fundamental purpose, or rather, purposes are instead to change facts, that is, to harmonise the conditions under which businesses operate and therefore compete, and to harmonise the degree of effective protection for consumers, whether as to their bodily integrity (the Product Liability Directive) or their economic interests (the Consumer Guarantees Directive).⁹¹ In the case of these directives, these practical purposes are intended to be achieved by the ‘harmonisation’ of the laws of the Member States, in a way which is ‘complete’ within its ambit for the first, merely ‘minimal’ for the second.⁹²

However, the EU entrusts the implementation of directives to the legislators of Member States (whether parliamentary or governmental) and the first interpretation and application of their provisions to the courts of the Member States: the role of the European Court of Justice is to ensure the proper implementation and interpretation (p.648) of a directive. This means of course that the European Court is fundamentally concerned with issues of law and is not therefore concerned with issues of fact or the application of the law to facts (their characterisation) arising from the cases referred to it under article 234 EC: both of these are therefore left to national courts. From this point of view and for this purpose, the European Court is an appellate court exclusively on points of law. While the European Court therefore reserves to itself the right to ‘interpret general criteria used by the community legislator’,⁹³ this leaves very considerable room for disharmony of application in such important concepts as ‘defect’ for the purposes of the Product Liability Directive.⁹⁴ In common with the French Cour de cassation, this fairly restrained role for the ‘European supreme court’ is partly a function of its understanding as to what are essentially legal and what are factual issues, and also at least to an extent a function of practical factors such as the need to keep the number of cases coming to it manageable and a political sense that some kinds of decision are better dealt with at a national rather than at a European level.

Moreover, the European Court of Justice sometimes has a further and very different choice from those to be made by the supreme courts of Member States. For, even within the application of a European directive it sometimes has to decide the line between those issues which are to be governed by European law and by national law. In this respect, the European Court can simply decide that a particular concept should be given an ‘autonomous’ European interpretation (and then indicate what that interpretation should be) or that it should be left to be interpreted by the legislator or the courts of Member States according to national traditions or choices, the Court taking into account in doing so the purposes and words used by the directive. However, we have seen that the European Court sometimes chooses a half-way position, placing an issue within the competence of national legislatures or courts but then subjecting it to some degree of control by reference to the principle of effectiveness and, therefore, of its own view of the overall purposes of the EU legislation in question.⁹⁵ In this way, the line between the competence of the European Court of Justice and national legal organs is blurred, and the law itself becomes a mixture of European and national rules, the latter sometimes qualified by European principle.