4. The Limits of the Study
On the other hand, this study does not deal with a number of things which it could usefully have included, quite apart from those already indicated in relation to the certain procedural aspects of liability for products. Of these, five are prominent.
First, it is primarily concerned with liability for movable products and while at times this does require consideration of liabilities imposed in respect of buildings, my (p.15) concern is to explain how these affect the channelling of liability for movable products rather than in their own right. Secondly, while I am concerned with civil liability for defects of quality or function as well as defects of safety in the two systems, my explorations of the relationship of civil and criminal liability and of civil and administrative liability are restricted to defects of safety. This is in part because it is here that these relationships are most interesting, but it is also necessary owing to considerations of space. Thirdly, and for the same reason, I do not include discussion of two very important areas which impact practically on the burden of liability on producers and suppliers: the quantification of damages and their general relationship to social security payments.64 Fourthly, while I shall look at the proper interpretation of the two directives under consideration, I shall not look at questions of their interpretation or application raised outside the contexts of the French or English systems (or published in French or English). For while I am concerned with the way in which the European Court of Justice is likely to interpret these directives, I am primarily concerned with their impact on the laws of these two Member States: this book is not intended to be a comprehensive exposition of the considerable literature or national case law on these two directives and their implementation in Europe. Fifthly, this is not a theoretical work in the sense of being primarily concerned with theories of the fundamental functions of the law of liability, whether tortious or contractual (for example, the attribution of moral responsibility, the achievement of compensation or economic deterrence); nor am I concerned with the reasons why a legal system should choose to impose ‘liability for fault’ or ‘strict liability’ in this or that context, though I shall refer from time to time to the justifications advanced by courts or writers for their views as to the interpretation or future direction of the law.
5. The Structure of the Work and its Treatment of the Material
The present work is divided into five parts. Within the first part, I shall look at considerable length at the way in which the two systems impose liability in respect of the manufacture, supply or use of products (whether classified as belonging to private or to administrative law) apart from their laws implementing the two directives, setting out first the French position (Chapters 2 to 7) and then the English (Chapters 8 to 11); the second part concerns liability in the administration in respect of failures to regulate or control product safety in French law (Chapter 12) and in English law (Chapter 13); the third part, the relationship of criminal responsibility for product safety and compensation in French law (Chapter 14) and then in English law (Chapter 15).
In all this, I shall first expose and explain the position in French law and then explain the position in English law, at this second stage drawing comparisons between the two systems as I do so. Having set out the law’s general approaches to the area in question, whenever possible I shall use a particular case or two as the context for (p.16) elucidation of the points which I have to make, hoping that by doing so I shall also give a sense of the feel of the legal argumentation and the nature of the process in the two systems. As regards the French law, the same set of facts come up again and again, the affaire du sang contaminé finding expression in the civil, criminal and administrative courts.65 My general approach in these discussions is that I do not assume any specialist knowledge on the part of the reader, nor make any assumption that he or she comes from an English (or common law) or French (or civil law) background. One consequence of this is that either an English or a French lawyer may at times consider that some of the points which I shall make are somewhat elementary; but elementary or not, they need to be made in order to depict the full picture and set up the means of making the comparison.
In the fourth part of the work, I shall look at the Product Liability Directive and Consumer Guarantees Directive and how they relate to English and French law. In Chapter 16, I shall look first at the creation of the Product Liability Directive, at its review at the European level; at its crucial interpretation by the European Court in 2002 as creating a ‘completely harmonious’ scheme of liability; at the processes and difficulties of its implementation in French and English law. In the following chapter (Chapter 17) I shall look further at the significance of its provisions in the light of the jurisprudence of the European Court and from the points of view of English and French lawyers, and in Chapter 18, I shall seek to explain how the implementation of this Directive has affected the patterns of liability in the two laws. In Chapter 19 I shall look at the Consumer Guarantees Directive, comparing it to the Product Liability Directive and explaining the difficulties of its implementation in French and English law. In the final part (Part V, Chapter 20) of the work, I shall offer more general conclusions to the work as a whole in terms of the relationships between the broad bodies of law under consideration and any lessons to be drawn for the harmonisation of laws in Europe.
Notes:
(1) EC Dir. 2000/31/EC of 8 Jun. 2000 on certain legal aspects of information society services, in particular electronic commerce, esp. arts. 9–11.
(2) E.g. Dir. 92/50/EEC of 18 Jun. 1992 relating to the coordination of procedures for the award of public service contracts.
(3) Dir. 2000/35/EC of the European Parliament and of the Council of 29 Jun. 2000 on combating late payment in commercial transactions; Dir. 86/653/EEC of 18 Dec. 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents.
(4) Dir. 85/577/EEC of 20 Dec. 1985 to protect the consumer in respect of contracts negotiated away from business premises; Dir. 90/314/EEC of 13 Jun. 1990 on package travel, package holidays and package tours; Dir. 93/13/EEC of 5 Apr.1993 on unfair terms in consumer contracts; Dir. 94/47/EC of the European Parliament and of the Council of 26 Oct. 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis; Dir. 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts; Dir. 98/6/EC of the European Parliament and of the Council of 16 Feb. 1998 on consumer protection in the indication of the prices of products offered to consumers; Dir. 99/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees; Dir. 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests.
(5)
The most prominent example of this has been the amendment of the
German Civil Code, the B.G.B., on implementation of the Consumer
Guarantees Directive: see Zimmermann, Liability
for Non-Conformity
.
(6) Dir. 93/13/EC of Apr. 5 1993 on unfair terms in consumer contracts.
(7) Dir. 99/44/EC, above n. 4 (the ‘Consumer Guarantees Directive’ or ‘1999 Directive’).
(8) Communication from the Commission to the European Parliament and Council, A More Coherent European Contract Law: An Action Plan Com. (2003) 68 final; EC Commission, Communication from the Commission to the European Parliament and the Council: European Contract Law and the revision of the acquis: the way forward (2004) Com (2004) 651 final.
(9) The Commission on European Contract Law (eds. O. Lando and H. Beale), The Principles of European Contract Law: Parts I and II (Kluwer, 2000) ; id. (eds. O. Lando, E. Clive, A. Prüm and R. Zimmermann) The Principles of European Contract Law: Part III (Kluwer, 2003) . Study Group on a European Civil Code, (work in progress, which includes draft provisions on tort law, is published at http://www.sgecc.net/) .
(10) The following works will give a sense of the debate: O. Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 MLR 1 ; R. Schlesinger, ‘The Past and Future of Comparative Law’ (1995) 43 American J. Comparative Law 477 ; T. Koopmans, ‘Towards a new “Ius Commune”’ in B. de Witte and C. Forder (eds.), The Common Law of Europe and the Future of Legal Education (Deventer, 1992) 43 ; A. Watson, Legal Transplants: An Approach to Comparative Law (univ. georgia press, Athens, Georgia, 2nd. edn., 1993) Chap. 4; B. Markesinis, ‘Learning from Europe and Learning in Europe’ in B. Markesinis (ed.), The Gradual Convergence: Foreign ideas, Foreign Influences and English Law on the Eve of the 21st Century (OUP, 1994) 1, esp. at 11–32 ; H. Patrick Glenn, ‘La civilisation de la common law’ [1993] RIDC 559 ; P. Legrand, ‘European Legal Systems are not Converging’ (1996) 45 ICLQ 52 ; R. Zimmermann, ‘Savigny’s Legacy, Legal History, Comparative Law and the Emergence of a European Legal Science’ (1996) 112 LQR 576 ; P. Legrand, ‘Against a European Civil Code’ (1997) MLR 44 ; J. Bell, ‘Mechanisms for Cross-fertilisation of Administrative Law in Europe’ in J. Beatson and T. Tridimas (eds.), New Directions in European Public Law (Hart Publishing, Oxford, 1998) 147 ; Bell, French Legal Cultures , Chap. 1; E. Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-first Century (Martinus Nijhoff, Leiden, 2004) 179–202 .
(11) Cf. K. Zweigert and H. Kötz, An Introduction to Comparative Law (OUP, 1998) 34 .
(12) Dir. 1985/374/EEC (the ‘Product Liability Directive’ or ‘1985 Directive’).
(13) E.g., the works undertaken under the Trento ‘Common Core’ of European Private Law project (directed by Professors M. Bussani and U. Mattei). The published results so far are: R. Zimmermann and S. Whittaker (eds.), Good Faith in European Contract Law (CUP, 2000) ; J. Gordley (ed.), The Enforceability of Promises in European Contract Law (CUP, 2001) ; M. Bussani and V. C. Palmer (eds.), Pure Economic Loss in Europe (CUP, 2003) . For an account of a wide range of jurisdictions’ laws on product liability see G. Howells, Comparative Product Liability (Dartmouth Publishing Co., 1993) .
(14) Below, p. 70.
(15) E.g. J.-F. Overstake, ‘La responsabilité du fabricant de produits dangereux’ 1972 RTDCiv. 485 ; H. Mazeaud, ‘La responsabilité civile du vendeur-fabricant’ RTDCiv. 1955.64 .
(16) Below, pp. 84–5.
(17) Below, pp. 52–4, 118–21.
(18) Most famously, Donoghue v Stevenson [1932] AC 562 (referring to the liability of manufacturers or retailers of products, but not ‘product liability’ as such).
(19) American Law Institute (1977) . This provision was replaced in 1997 with 21 separate rules.
(20) For an introduction to the US law and legal theory see: Stapleton, Product Liability , chaps. 4–8; J. Stapleton, ‘Restatement (Third) of Torts: Products Liability, an Anglo-Australian Perspective’ (1999–2000) 39 Washburn LJ 363 ; D. Owen, Products Liability Law (West, 2005) ; W. Page Keeton, D. G. Owen and J. E. Montgomery, Product Liability and Safety; Cases and Materials (Foundation Press, 3rd. edn., 1996) with supplements .
(21) Recital 1.
(22) Below, pp. 438–9.
(23) Art. 3. And see below, p. 443. Case C-52/00 paras. 36–40 where the ECJ held that French implementing legislation which imposed liability on suppliers without such a possibility of escape to be in breach of the Directive.
(24) See further Chap. 18 below.
(25) See below, pp. 547–8, 558. In the French system, there is an important exception where one defendant’s liability is a matter for the ordinary courts and the other’s is for the administrative courts, below, p. 320.
(26) Below, pp. 547–8, 558.
(27) Below, pp. 33–4, 172–3, 546–53, 557–63.
(28) Below, p. 51–61.
(29) Art. 1384 al. 1 C. civ.
(30) Below, pp. 52–4.
(31) Below, p. 27 but cf. pp. 54, 56–7.
(32) Below, pp. 60–1.
(33) Below, pp. 118–21, 121–31.
(34) Below, pp. 162–3, Chap. 9.
(35) Below, Chaps. 7, 11.
(36) Below, pp. 307–10, 334–5, 370–1, 405–7.
(37) Below, pp. 310–11, 315–19, Chap. 13.
(38) Below, pp. 319–25, 168–9, Chap. 13.
(39) Below, Chap 19.
(40) Below, Chap. 14.
(41) Ibid.
(42) Below, pp. 394–401.
(43) Below, p. 399.
(44) Below, pp. 388–93.
(45) Below, pp. 149–51, 315–19, 324.
(46) Below, pp. 454–5, 457–8.
(47) Below, Chap. 15.
(48) Ibid.
(49) Below, pp. 403–4.
(50) For a comparison in the French and English context: Taylor, Harmonisation communautaire, 174–81 .
(51) There is a further difficulty here, as a significant difference between the two systems is that the range of evidence before a court available for deciding an issue of fact (and therefore, in a sense, the facts themselves) is different: below, pp. 46–50, 208–14. The importance of differences in civil process in the practical impact of the EC Product Liability Directive (in particular in contrast with product liability in the US) is noted by M. Reimann, ‘Product Liability in a Global Context: the Hollow Victory of the European Model’ (2003) 11 ERPL 128, 151–53 .
(52) Below, pp. 492–4.
(53) E.g. R (on the application of Delena Wells) v Secretary of State for Transport, Local Government and the Regions Case C-201/02 [2004] ECR, at para. 65.
(54) E.g. Océano Grupo Editorial SA v Murciano Quintero (Joined Cases C-240/98 to C-244/98) [2000] ECR I-4941 where the ECJ held that a national court was entitled to raise the question of the unfairness of a term in a consumer contract of its own initiative; Cofidis SA v Jean-Louis Fredout Case C-473/00 [2002] ECR I-10875.
(55) Below, Chap. 19.
(56) ‘Contractual conformity’ is rather wider than this description indicates: see below, pp. 591–604.
(57) Below, pp. 481, 502, 566–73, 591–2.
(58) European Court decisions of 2002, below, pp. 440–4.
(59) Below, p. 568.
(60) Below, pp. 583–8.
(61) Below, pp. 574–83.
(62) Below, pp. 441–3.
(63) Below, p. 441.
(64) For a recent comparative study of awards of damages see L. Reiss, Le juge et le préjudice: Etude comparée des droits francais et anglais (P.U. d’Aix-Marseille, 2003) .
(65) Below, pp. 149–51, 315–19, 324, 394–401.