Opinion of the Advocate General — ECLI:EU:C:2001:453
Date: 2001-09-18
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful;Reference for a preliminary ruling
Origin: Spain;France

Summary of the Judgment 
1. Approximation of laws — Measures for the establishment and functioning of the 
internal market — Legal basis — Article 100 of the Treaty (now Article 94 EC) — 
Possibility for the Member States to maintain or establish provisions departing from 
Community harmonisation measures — No such possibility 
(EEC Treaty, Art. 100 (amended to Art. 100 of the EC Treaty, now Art. 94 EC); EC 
Treaty, Art. 100a (now Art. 95 EC)) 
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SUMMARY — CASE C-52/00 
2. Approximation of laws — Measures for the establishment and functioning of the 
internal market — Directives already adopted when Article 153 EC entered into 
force — Possibility for the Member States to maintain or establish more stringent 
consumer protection measures on the basis of Article 153 EC — No effect 
(Arts 94 EC, 95 EC and 153 EC) 
3. Approximation of laws — Liability for defective products — Directive 85/374 — 
Margin of discretion of the Member States — Degree of harmonisation achieved by 
the Directive 
(Council Directive 85/374) 
4. Approximation of laws — Liability for defective products — Directive 85/374 —• 
Possibility of retaining a general system of product liability different from that 
provided for in the Directive — No such possibility 
(Council Directive 85/374, Art. 13) 
5. Action for failure to fulfil obligations •— Disregard of obligations under a directive — 
Pleas in defence — Plea questioning the lawfulness of the directive — Not admissible 
(Arts 226 EC, 227 EC, 230 EC and 232 EC) 
6. Approximation of laws — Liability for defective products — Directive 85/374 — 
Scope — Different system of liability applying to the producers and victims of 
defective products •— Whether justifiable 
(Council Directive 85/374, Art. 9(b)) 
7. Action for failure to fulfil obligations — Subject-matter of the dispute — Delimited in 
the course of the pre-litigation procedure — Whether the subject-matter may 
subsequently be narrowed — Permissible 
(Art. 226 EC) 
1. Unlike Article 100a of the EC Treaty 
(now, after amendment, Article 95 
EC), Article 100 of the EEC Treaty 
(amended to Article 100 of the EC 
Treaty, now Article 94 EC) provides 
no possibility for the Member States to 
maintain or establish provisions 
departing from Community harmon­
ising measures. 
(see para. 14) 
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2. Article 153 EC is worded in the form 
of an instruction addressed to the 
Community concerning its future pol­
icy and cannot permit the Member 
States, owing to the direct risk that 
would pose for the acquis communaut­
aire, autonomously to adopt measures 
contrary to the Community law con­
tained in the directives already adopted 
at the time of entry into force of that 
law. In fact, the competence conferred 
in that respect on the Member States by 
Article 153(5) EC concerns only the 
measures mentioned at paragraph 3(b) 
of that article. That competence does 
not extend to the measures referred to 
in paragraph 3(a) of Article 153 EC, 
that is to say the measures adopted 
pursuant to Article 95 EC in the con­
text of attainment of the internal 
market with which in that respect the 
measures adopted under Article 94 EC 
must be equated. 
(see para. 15) 
3. The margin of discretion available to 
the Member States in order to make 
provision for product liability is 
entirely determined by Directive 
85/374 on the approximation of the 
laws, regulations and administrative 
provisions of the Member States con­
cerning liability for defective products 
and must be inferred from its wording, 
purpose and structure. The fact that the 
Directive provides for certain deroga­
tions or refers in certain cases to 
national law does not mean that in 
regard to the matters which it regulates 
harmonisation is not complete. It fol­
lows that Directive 85/374 seeks to 
achieve, in regard to those matters, 
complete harmonisation of the laws, 
regulations and administrative provi­
sions of the Member States. 
(see paras 16, 19, 24) 
4. Article 13 of Council Directive 85/374 
on the approximation of the laws, 
regulations and administrative provi­
sions of the Member States concerning 
liability for defective products cannot 
be interpreted as giving the Member 
States the possibility of maintaining a 
general system of product liability dif­
ferent from that provided for in the 
Directive. 
The reference in that provision to the 
rights which an injured person may rely 
on under the rules concerning contrac­
tual or non-contractual liability must 
be interpreted as meaning that the 
system of rules put in place by the 
Directive does not preclude the appli­
cation of other systems of contractual 
or non -contractual liability based on 
other grounds, such as fault or a 
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SUMMARY — CASE C-52/00 
warranty in respect of latent defects. 
Likewise the reference in the afore­
mentioned article to the rights which 
an injured person may rely on under a 
special liability system existing at the 
time when the Directive was notified 
must be construed as referring to a 
specific scheme limited to a given 
sector of production. 
(see paras 21-23) 
5. The system of remedies set up by the 
Treaty distinguishes between the 
remedies provided for in Articles 226 
EC and 227 EC, whereby a declaration 
that a Member State has failed to fulfil 
its obligations may be sought, and 
those provided for in Articles 230 EC 
and 232 EC, which seek judicial review 
of the lawfulness of measures adopted 
by the Community institutions or of 
the institutions' failure to adopt meas­
ures. Those remedies serve different 
purposes and are subject to different 
rules. In the absence of a provision of 
the Treaty expressly permitting it to do 
so, a Member State cannot, therefore, 
properly plead the unlawfulness of a 
decision addressed to it as a defence in 
an action for a declaration that it has 
failed to fulfil its obligations arising out 
of its failure to implement that 
decision. 
(see para. 28) 
6. The limits set by the Community legis­
lature to the scope of Council Directive 
85/374 on the approximation of the 
laws, regulations and administrative 
provisions of the Member States con­
cerning liability for defective products 
are the result of a complex balancing of 
different interests. As is apparent from 
the first and ninth recitals in the 
preamble to the Directive, those inter­
ests include guaranteeing that compe­
tition will not be distorted, facilitating 
trade within the common market, con­
sumer protection and ensuring the 
sound administration of justice. 
The consequence of the choice made by 
the Community legislature is that, in 
order to avoid an excessive number of 
disputes, in the event of minor material 
damage the victims of defective prod­
ucts cannot rely on the rules of liability 
laid down in the Directive but must 
bring an action under the ordinary law 
of contractual or non-contractual lia­
bility. 
In those circumstances the threshold 
provided for in Article 9(b) of the 
Directive cannot be regarded as affect­
ing victims' rights of access to the 
courts. 
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COMMISSION v FRANCE 
Similarly, the fact that different sys­
tems of liability apply to the producers 
and victims of defective products does 
not constitute an infringement of the 
principle of equal treatment where the 
differentiation dependent on the nature 
and amount of the damage suffered is 
objectively justified. 
(see paras 29-32) 
7. Although under the Court's case-law 
the complaints in the application must 
be identical to those in the letter of 
formal notice and in the reasoned 
opinion, that requirement cannot be 
carried so far as to mean that in every 
case the statement of complaints must 
be exactly the same, where the subject-
matter of the proceedings has not been 
extended or altered. 
(see para. 44) 
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