Opinion of the Advocate General — ECLI:EU:C:2001:555
Date: 2001-10-18
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

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 (subsequently, after amendment, Art. 100 of the EC Treaty, 
now Art. 94 EC); EC Treaty, Art. 100a (now, after amendment, Art. 95 EC)) 
I - 3879 
SUMMARY — CASE C-154/00 
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. Actions for failure to fulfil obligations — Disregard of obligations under a directive — 
Pleas in defence — Plea questioning the lawfulness of decisions — 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, first para, (b)) 
1. Unlike Article 100a of the EC Treaty 
(now, after amendment, Article 95 
EC), Article 100 of the EEC Treaty 
(subsequently, after amendment, 
Article 100 of the EC Treaty, and 
now Article 94 EC) provides no possi­
bility for the Member States to main­
tain or establish provisions departing 
from Community harmonising meas­
ures. 
(see para. 10) 
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 
article. The competence conferred on 
the Member States by Article 153(5) 
EC to maintain or introduce consumer 
protection measures that are more 
stringent than the Community meas­
ures concerns only the measures men­
tioned at paragraph 3(b) of Article 153 
I - 3880 
COMMISSION v GREECE 
EC. That competence does not extend 
to the measures referred to in para­
graph 3(a) of that provision, that is to 
say the measures adopted pursuant to 
Article 95 EC with which in that 
respect the measures adopted under 
Article 94 EC must be equated. 
(see para. 11) 
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 
itself and must be inferred from its 
wording, purpose and structure. The 
fact that the Directive provides for 
certain derogations or refers in certain 
cases to national law does not mean 
that in regard to the matters which it 
regulates harmonisation is not com­
plete. It follows that Directive 85/374 
seeks to achieve, in those matters, 
complete harmonisation of the laws, 
regulations and administrative provi­
sions of the Member States. 
(see paras 12, 15, 20) 
4. Article 13 of Directive 85/374 on the 
approximation of the laws, regulations 
and administrative provisions of the 
Member States concerning liability for 
defective products cannot be inter­
preted as giving the Member States 
the possibility of maintaining a general 
system of product liability different 
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 of the law of 
contractual 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 
warranty in respect of latent defects. 
Likewise the reference in Article 13 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 17-19) 
5. The system of remedies set up by the 
Treaty distinguishes between the 
I-3881 
SUMMARY — CASE C-154/00 
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 Directive 85/374 
on the approximation of the laws, 
regulations and administrative provi­
sions of the Member States concerning 
liability for defective products are the 
result of a complex balancing of dif­
ferent interests. As is apparent from the 
first and ninth recitals in the preamble 
to the Directive, those interests include 
guaranteeing that competition will not 
be distorted, facilitating trade within 
the common market, consumer protec­
tion and ensuring the sound adminis­
tration of justice. 
The consequence of the choice made by 
the Community legislature is that, in 
order to avoid an excessive number of 
actions, 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. 
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) 
I -3882