3. Broadening the Investigation Further

However, in my view, there are four further important features of the setting within which liability for products so understood must be set: the relationship between criminal responsibility and civil liability and the role of the criminal process; the significance of key differences in the French and English civil processes when deciding important substantive issues; the relationship of the Consumer Guarantees Directive of 1999 to questions of liability for products; and the characteristics of the processes by which the two EC directives have been implemented in France and England.

First, the relationship between criminal responsibility and civil liability has been particularly important in the French context in two ways: in part because of the direct relationship between the substantive criminal law affecting the manufacture and supply of unsafe products and the imposition of liability to persons injured by them; and, in part because of the practical and indeed sociological importance of the criminal process in the investigation and adjudication of claims for compensation of people injured by products.⁴⁰ The importance of the criminal process to liability for products (and in other situations of recovery of personal injury and death) stems from a complex and heady mix of elements, including the breadth of civil liability for fault provided by the Civil Code; the power of victims of criminal offences to trigger the judicial investigation of alleged criminal offences and then, if proceedings continue, to be involved in the criminal trial as a party to the proceedings; and the extensive powers of investigating magistrates (the juges d’instruction), particularly when compared to the relatively restricted evidence which may be summoned to civil courts.⁴¹ Moreover, the role of the criminal courts in the investigation, characterisation and award of compensation for crimes involving defective products became very prominent in France in the course of the 1990s in the affaire du sang contaminé, in the course of which various public health officials and, ultimately, the prime minister and two other government ministers were charged with offences relating to the public supply of blood products infected with HIV which caused the death of many haemophiliacs and others who received them.⁴² Quite apart from the political fallout of this prominent affaire, it led directly to a change in the Constitution of the Fifth Republic;⁴³ affected legislation attempting to change the basis on which public officers could be made criminally liable for acts done in the performance of their duties;⁴⁴ had a major influence on the jurisprudence of both the civil and administrative courts (p.11) concerning liability for products;⁴⁵ and created a very difficult climate for implementation of the Product Liability Directive.⁴⁶ Indeed, it would not be going too far to say that the echoes of this affaire can still be heard in any French discussion of liability (civil, criminal or administrative) in respect of products.

The contrast here with English law is very striking, for there one looks in vain for any significant connection between the very extensive criminal offences relating to the production, supply or use of unsafe products and the imposition of civil liability.⁴⁷ And while in theory it is possible for a victim of a product to gain compensation from an English criminal court as part of the criminal process, in fact this rarely occurs, except in the least serious of cases.⁴⁸ This is to be explained by reference to a complex of factors: the absence of general criminal offences of negligent causing of death or personal injuries; the lack of any necessary doctrinal connection between criminal and civil liability; the absence of a direct role for the victims of crime in the criminal process; and the restrained powers of relevant courts to award compensation coupled with a judicial perception that awards of damages are essentially a matter for the civil courts.⁴⁹

This involvement of the criminal process and institutions as well as the substantive criminal law in my depiction of liability for products led me back to assess the impact of features of the civil processes in French and then in English law on key aspects of civil liability for products; and so certain characteristics of the civil processes provide the second further feature of the setting into which I wish to place liability for products. Of course, there are a number of ways in which the civil procedure may impact on issues of liability for products, including questions relating to the financing of access to justice and to special arrangements for the disposal of group claims where a number of persons have suffered injury or death caused by the same category of product: these are important issues but for reasons of space are not pursued here.⁵⁰ My concern is rather with how the civil processes of France and England differ in their approach to the determination of such key issues as ‘fault’, ‘negligence’ or ‘defect’, these approaches stemming from the nature of the civil process itself, the relative roles of the parties and the court in relation to evidence (and the range of evidence available), and the finality or otherwise of decisions made by lower courts. Issues such as these are neither simply factual nor purely legal and in English law are thereby sometimes termed rather weakly ‘mixed’ questions of fact and law, but they have in common that they require the court to make an assessment or an evaluation (caught nicely in the French term, une appréciation) as to whether or not a certain normative standard has been reached. In my view, these differences in the processes by which decisions are reached can have profound effects on the quality and nature of the substantive decision reached by a court, so that even where a French and an English court purport to apply an identical (‘completely harmonised’) legal test of liability as set out in European legislation, their decisions may well differ on apparently identical facts.⁵¹ (p.12) Moreover, the European Court of Justice is not likely to see it as its role to resolve such divergences in the substantive impact of even perfectly harmonised rules of liability: for while the European Court would be willing to interpret the criteria of normative standards (such as ‘defect’ in product liability) set by European legislation, it is likely to see issues of their application as ones of fact for the evaluation of the courts of Member States.⁵² Furthermore, in principle the European Court accepts that questions of civil procedure are for the laws of Member States, this sometimes being elevated to a ‘principle of procedural autonomy’ of the Member States,⁵³ though the Court has on occasion made inroads into this ‘autonomy’ when this is justified by particular legislation and Community principle.⁵⁴ To the extent to which an issue is treated as one of fact or of judicial evaluation, there is no room for harmonisation: laws can be harmonised, legal concepts can be subjected to ‘autonomous’ interpretations, but facts and their legal significance remain fundamentally particular and therefore local.

The third further feature of the wider setting of liability for products concerns the role of the Consumer Guarantees Directive of 1999, the second directive whose implementation is the subject of this study.⁵⁵ Indeed, this directive could even be seen as the contractual counterpart of the extra-contractual Product Liability Directive, though the latter does not classify the liability which it requires Member States to impose according to the Gaian scheme. Both directives require the creation of legislation which imposes ‘liability’ on suppliers of movable physical things (‘goods’ under the 1999 Directive, ‘products’ under the 1985 Directive) when they fail to attain a composite standard either of safety (the 1985 Directive) or quality and fitness for purpose (the 1999 Directive⁵⁶) and both make important provision for the timescale within which any claim must be brought. On the other hand, as I shall explain, there are very important differences between the two directives: in their degree of purported harmonisation; in the 1985 Directive’s concern with the safety of products in contrast to the 1999 Directive’s concern with the quality or fitness of goods; in the 1999 Directive’s restriction to the protection of consumers, whereas the 1985 Directive protects all those injured or killed by unsafe products; and especially in the remedial expression of the ‘liabilities’ which the two directives create.⁵⁷ For, as to the last of these, while the 1985 Directive is concerned only with liability in damages to compensate a claimant for personal injuries, death or (in certain quite narrow circumstances) damage to property, the 1999 Directive does not require the imposition of liability in damages, but instead creates an elaborate hierarchy of other rights against sellers of goods: rights to repair or replacement, price reduction, and rescission and (p.13) restitution. While in a certain sense both directives arise from a general sense of a need to protect consumers in relation to products, the nature of the interests which they are concerned to protect and the way in which they are protected are very different. In this way, the Consumer Guarantees Directive provides a counterpoint to the Product Liability Directive.

However, ironically, one of these differences between the two directives coupled with the understandable concern of national legislators to preserve a certain consistency of treatment and coherence of regulation within their laws after implementation leads to the potential for a direct clash between them. For while the Product Liability Directive has been held by the European Court to require the creation of a ‘completely harmonised’ set of rules governing liability for products (in the way which it circumscribes this notion),⁵⁸ the Consumer Guarantees Directive allows the retention or creation of greater protection for consumers.⁵⁹ Given the limited nature of the remedies which the Consumer Guarantees Directive requires by contrast to those already provided by many Member States (and notably by existing English and French law), a Member State may prefer to implement the Consumer Guarantees Directive either by amending its existing law governing liability for qualitative defects in the sale of goods (and thereby incidentally changing the ambit of liability in damages for these defects) or by overhauling its law governing liability in contracts of sale (and possibly other related contracts) more generally, using the Directive to set the basis of liability (‘contractual non-conformity’) but adding to and/or ‘improving’ the remedies for a defendant’s failure to reach this standard for the benefit of all categories of buyer—private, commercial or consumer. As I shall explain, the former was the route adopted by the English legislator in implementing the 1999 Directive, thereby creating fairly marginal changes to the incidence of liability in damages for the benefit of consumers.⁶⁰ In France, by contrast, there was a dispute as to whether the 1999 Directive should be implemented by reforming the law of sale contained in the Civil Code or instead by merely creating another set of rights for consumers of goods in the Code de la consommation. This dispute is revealing of a number of characteristics of the French legal scene, not least the conflicting attitudes towards European influences on private law and the proper functions of modern contract law. While France finally took a minimalist approach in its loi of 9 December 2004 to implementing the 1999 Directive in the Code de la consommation with only an apparently very minor amendment of the period in which rights must be exercised under the law of sale, the surrounding French juristic debate shows how a wider and apparently permitted implementation of the 1999 Directive could make practical nonsense of the ‘completely harmonised’ character of the 1985 Directive.⁶¹ For while the European Court of Justice has held that it is wrong for a Member State to impose liability for defective products on their ‘supplier’ beyond the conditions which the 1985 Directive sets, it expressly allowed the maintenance or even the creation of contractual liabilities ‘such as liability for latent defects’ under the law of sale.⁶² This suggests that the uniformity required by the 1985 Directive is not merely partial (as the Directive itself concedes) but is also essentially (p.14) formal, since a Member State remains entitled to impose liability in damages on persons coming within the Directive’s ambit as long as they are called something else and the ‘legal ground’ of their liability is described in a different way. Such an artificial distinction undermines the justification given by the European Court for its view that the 1985 Directive creates a uniform law, for this rested on the economic effects of divergences in rules of liability in terms of distorting competition and impeding the free movement of goods between Member States:⁶³ such economic considerations cannot rest on differences of classification or formal legal differences in the basis of liability, but on the practical effects which these rules have on the costs of liability to producers and suppliers in fact caught by its provisions. But it shows that while the Product Liability and Consumer Guarantees Directives themselves are concerned with different subject matters, their implementation in the laws of the Member States may be interrelated. While the 1985 Directive seeks to impose a ‘completely harmonious’ scheme of liability within its domain, and the 1999 Directive merely minimal requirements, the potential for substantive conflict remains.

What all this means is that the present work is concerned with many issues which are not usually seen as bearing directly on product liability as it is generally understood. In my view, though, the laws surrounding these two directives offer an opportunity to explore and compare a number of different areas of liability in the two systems and to attempt an explanation of their complex interrelationship. For in undertaking the research for this book, I have been very much struck by the extent to which apparently disparate areas of the law relate to as well as contrast with each other; and the extent to which the relationships differ as between the French and English systems. To many continental civil lawyers in particular, this observation may seem axiomatic as regards private law, coming as they do from legal traditions which see private law as a genuine legal category, given unity and integrity in modern times by the Civil Codes; but it is much less so as regards the relationship between administrative and civil liability, and particularly as regards French law where public and private appear so sharply divided. And while ancient common law saw profound connections between its laws of crime and torts, the modern English lawyer generally sees very much fewer connections between criminal and civil liability than does the French lawyer and certainly does not see the criminal law or the criminal process as major factors in the allocation of compensation of death, personal injuries or damage to property caused.