6. European Legislation, National Laws and Implementation

Everything is connected to everything else—but as regards the modern legal systems of Europe to this trite observation must be added that while the legal institutions, legal processes, and substantive laws within Member States are connected to each other differently, they possess a common skein of legal threads tying each of them with the laws, policies and institutions of the European Union. The overall history of European Community law in general could be seen in terms of the working out of these tensions between common European norms and national legal systems of norms, but the tensions are particularly visible in the case of those European laws which impact on such deeply entrenched areas of national law as the law of obligations, on contracts of sale and extra-contractual liability. While EC legislation such as the Product Liability Directive or the Consumer Guarantees Directive does not simply involve the transplant of legal rules or institutions from one legal system to another (even where the legislation appears to reflect the concepts or approaches of one system or group of systems over another) since it creates a distinct and original body of law driven by the specifically European purposes for which it was enacted and principles to which it is related, nevertheless it can involve the introduction into a legal system of concepts, approaches or policies that do not fit with their indigenous surroundings. In this respect, it is noticeable that so far the EC directives which have affected the private laws of the Member States have done so in a very targeted (one could say piecemeal) fashion, creating new rights or remedies in particular circumstances, often in a way which is clearly intended to supplement other, national legal rules rather than setting out the law governing a particular situation systematically. This is conspicuously true of the Product Liability Directive, which, for all its interpretation as ‘complete harmonisation’ within its ambit, forms only part of the law governing manufacturers’ and suppliers’ liability in the laws of Member States, and even more of the Consumer Guarantees Directive which is overtly minimal in its requirements and which is more restricted both as regards the class of buyers which it protects and as regards the range of remedies which it provides than the existing laws of many if not all Member States. These directives therefore require a very considerable degree of normative integration within surrounding national laws and one of a different order given the deep roots and interconnectedness of private law within Member States.

However, perhaps paradoxically, a common law system such as English law may appear to be able to tolerate more easily the sort of norms which are parachuted in by the EC legislator, even though its historical background differs significantly from the general continental Romanist tradition. For the common law approach remains that (p.655) legislation (‘statute’) creates exceptional intrusions into the potentially all-embracing common law:¹²⁶ it is very much within the tradition for legislation either to supplement or to differ significantly in approach from the surrounding common law and, indeed, other statutes, since Parliament intervenes specially, for particular purposes and in particular ways. By contrast, where a legal system (such as French law) sees legislation and, in particular, codified legislation as its normative starting point, new EC-inspired laws coming into the system must either sit uncomfortably outside the existing codes (adding to substantive legal complexity and weakening the codes’ claims to provide coherent and systematic schemes of regulation) or be brought within them, thereby introducing new elements which may clash with existing ways of thinking. In my view, however, this contrast between the common law and those systems whose private law is codified is not as marked as this suggests. For, even though English law may see legislation as an intervention in the common law, nevertheless modern legislators have attempted to ensure that statutes and statutory instruments connect up with the common law itself and with the surrounding pattern of other statutes: a picture of English law in terms of the common law pricked by a myriad of unrelated statutes would be a caricature.

The true extent of the sorts of difficulties faced by the English and French legislatures in implementing EC directives in areas already governed by their laws is well illustrated by the Product Liability and Consumer Guarantees Directives. The English legislator in implementing the Product Liability Directive did not face any formal difficulty in implementation, but was able to create easily a new basis of liability following the pattern of the Directive itself, a basis which simply sits side by side with existing (and to an extent broader) ones provided by the tort of negligence and for breach of contract: implementation of the Directive merely created a new statutory tort to add to the rather ragged bundle of other torts, some statutory and some at common law. However, at a substantive level, the legislation which resulted from implementation of the Product Liability Directive has appeared increasingly isolated and out of keeping with the rest of the law, whether statutory or common law. For in the second half of the twentieth century the majority of parliamentary statutes¹²⁷ and even more the courts have seen negligence as the proper basis for the imposition of liability for personal injuries and death. In the case of the courts, this vision has been reflected positively in their seeing negligent conduct causing physical harm as generally justifying the imposition of a duty of care (though particular reasons can be adduced as to why one should be denied in the circumstances) and therefore setting a minimum standard of behaviour in respect of personal safety; but it has also been reflected negatively by restricting the ambit of those established torts (of private nuisance, Rylands v Fletcher and breach of statutory duty) which had been used and could have been developed more widely to impose liability without negligence.¹²⁸ This second aspect should not be surprising, for if the ‘negligence standard’ balances the value of the defendant’s activity as well as the cost of precautions against the danger which it creates, then an (p.656) absence of negligence may reflect a judicial decision that the activity in question should not be discouraged by the imposition of civil liability: from this perspective, the negligence standard could be seen as setting also a maximum standard of behaviour, even though one which may at times conflict with standards imposed for purposes other than of civil liability.¹²⁹ In the result, liability under Part I of the Consumer Protection Act looks very different from the generality of liabilities for personal injuries and death accepted at common law, and in a way which is (apart from its European origins) difficult to justify when put next to other situations in which the traditional arguments in favour of strict liability could equally well be canvassed.¹³⁰ In this environment, it should not be surprising that the question whether liability under Part I of the Consumer Protection Act is substantially different from liability in negligence remains controversial.¹³¹

Moreover, the English legislator faced very considerable difficulties of normative fit in implementing the Consumer Guarantees Directive, partly because the law of seller’s liability in sales of goods was already the object of a developed statutory scheme, but even more because of the clash in remedial strategy to deal with qualitative or functional defectiveness of the goods between its existing rules, which reflected the common law stance more generally, and the scheme required by the Directive.¹³² So, while the Directives standard of ‘contractual conformity’ could quite easily be accommodated within section 14 of the Sale of Goods Act 1979 (with a bit of tweaking to other statutory definitions), its hierarchical system of rights clashed fundamentally with existing English law remedies for breach of the implied statutory terms of quality and fitness for purpose which give primacy to a short-lived right of rejection of the goods and a much longer-lived right to damages and do not provide any right to repair or replacement of the goods by the seller.¹³³ Here, the minimal nature of the 1999 Directive and UK governments declared policy of not reducing existing legal rights of consumers led to implementation of the Directive by the creation of an additional set of rights for ‘consumers’ (whose definition was extended) broadly in parallel to the rights already provided by the scheme of the 1979 Act and by the common law of breach of express contract terms, though at times a consumer’s choice of the new scheme of rights may temporarily exclude recourse to the classic rights. The resultant layering of regulation is horribly complicated: legal implementation but only semi-integration.

If anything, however, the problems of normative fit caused by implementation of the 1985 and 1999 Directives have been more acute in French law, both at a formal and at a substantive level.

(p.657) In the case of the Product Liability Directive, the first plan (the ‘Ghestin projet’) was for a rational implementation by creating an exclusive basis of liability for damage caused by unsafely defective products and to use implementation as an occasion for a wider reform of the law of liability for defective property by amending the law of sale on the basis of the standard of ‘conformity of the property’ set by the Vienna Convention.¹³⁴ Both these changes were to be effected by amendment of the Civil Code, this being acceptable because of the perceived rational relationship between the reforms and the wider Civil Code: the new product liability could be seen as a special ground of liability not altogether different from the special liabilities for animals and for the ‘ruin of buildings’ already provided by the code, and the amendment of the law of sale (for all buyers) would also fit there naturally.¹³⁵ From the point of view of substance, however, implementation of the Product Liability Directive itself was more problematic as a result of the generous nature of existing jurisprudence affecting liability for products, whether under the law of delict or contract, since this meant that a faithful and exclusive implementation appeared to reduce the protections given to French victims of products.

This substantive difficulty with the plan remained when the more ambitious reforms of the law of sale were jettisoned and did not cease to dog the process of attempted implementation in the course of the 1990s, when the affaire du sang contaminé made the law governing unsafe products increasingly politicised and when continued legislative inaction triggered judicial ‘implementation’ of the Directive under cover of interpretation of existing French concepts.¹³⁶ The resulting loi of 1998 reflected a rather messy compromise: in its inclusion of the development risks defence with the exception of products made from the human body, but even more in its preservation of the other grounds on which a victim of a product could claim.¹³⁷ At a formal level, the new product liability’s claim to be in the Civil Code was significantly weakened, as its special and non-exclusive nature argued that it should not be seen as capable of contributing towards more general legal principle. Indeed, some authors expressed concern that it should not be allowed to contaminate the rest of the law (notably, as to force majeure).¹³⁸ Or, as Terré, Simler and Lequette put it, European harmonisation was achieved at the cost of internal legal disharmony.¹³⁹

However, French law’s implementation of the 1985 Directive went beyond what it required. For in an attempt to fit its implementation with general French legal principle, with its existing jurisprudence, and with the popular concerns of the time, the loi of 1998 extended liability for defective products in the Civil Code in three ways: putting the liability of suppliers on the same basis as producers (thereby fitting in with established jurisprudence on the liability of sellers); extending liability of all those liable for all damage to property (whatever its nature, and without any threshold of liability, both following the fundamental principle of réparation intégrale of the French law of liability); and by providing that two defences available to the producer under the Directive should not be available in certain circumstances in French law (this (p.658) reflecting a concern to impose post-marketing obligations regarding the safety of products on producers and suppliers).¹⁴⁰ Some (though rather oddly not all) of these extensions of liability fell foul of the European Courts decisions in 2002 which declared that the 1985 Directive required the creation of a ‘completely harmonised’ scheme of liability, despite its toleration in article 13 of existing liabilities based on grounds other than those set out by the Directive.¹⁴¹ And after the European Court’s view of the matter has been given effect by the loi of 9 December 2004 the legislative expression of the new product liability in France fits even less well with French legal principle and with its previous jurisprudence.¹⁴²

But the problems for French law did not stop there. For the decisions of the European Court in 2002 made the question as to the status of jurisprudence previous to the loi of 1998 more acute: did this jurisprudence (whether intended to ‘implement’ the Directive or earlier developments based on traditional techniques and pinned to the Civil Code) survive the combined effect of specific French legislation in the area and the European Court’s decisions?¹⁴³ Here, no clear overall answer can be given, though some particular judicial constructions look doomed (notably, the implementing jurisprudence of the 1990s) whereas others look destined for revival (notably, the garantie légale in sale).¹⁴⁴ This last point appears to have been noticed and indeed encouraged by the French government which retained a reform to the bref délai of the garantié légale in sale in its implementation of the Consumer Guarantees Directive.¹⁴⁵

This brings me, then, to the implementation in France of the Consumer Guarantees Directive itself¹⁴⁶ Here, we experience a certain déja vu, for the first projet (put forward by the government working group chaired by Viney), proposed using the Directive as the basis for a general reform of the law of sale recognisably similar to that proposed by Ghestin in the 1980s.¹⁴⁷ In the case of the 1999 Directive, the sort of extension and improvements which the avant-projet de loi had in mind appeared to be compatible with the Directive itself, which was overtly minimal in its requirements.¹⁴⁸ However, despite the fact that the subject matter of the reform did not concern the safety of products (and therefore did not impinge on the sensitivities created by the affaire du sang contaminé), the Viney working group’s proposals attracted a very lively dispute, involving arguments as to the proper pattern of French codification (should its implementation legislation amend the Civil Code or merely the Code de la consommation?); disputes at a conceptual level as to the nature of ‘non-conformity’ and ‘latent defect’; tensions between those who saw the French legal tradition threatened by the creeping Europeanisation of private law; and substantive arguments between different political visions of contract law, between a ‘social solidarist’ vision and a more liberal vision which prioritises freedom of contract.¹⁴⁹ Underneath all this argumentation, there lay a genuine problem for French law: should it extend a scheme of liability conceived for sales of goods to consumers to all contracts of sale for the benefit of all categories of buyer and would it thereby create a scheme which, though ‘coherent’, was sometimes (p.659) substantively inappropriate? Or should it simply add another layer of rights limited in the way envisaged by the Directive but at a cost of complexity if not actual contradiction with existing patterns to the practical detriment of the consumers which it purported to help? In the result, the French government in the ordonnance of 17 February 2005 favoured the minimalist approach to implementation, the wider approach proposed by the Viney working group having become politically unpopular, being opposed both by business (on the grounds of its interference with contractual freedom) and by consumers groups (on the grounds that the new coherent scheme would sometimes be less protective of consumers than the existing law and jurisprudence).¹⁵⁰ Again, European harmonisation led to internal French disharmony.