Keywords

Summary



Keywords

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))

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))

Summary

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 possibility for the Member States to maintain or establish provisions departing from Community harmonising measures.

( see para. 10 )

2. Article 153 EC is worded in the form of an instruction addressed to the Community concerning its future policy and cannot permit the Member States, owing to the direct risk that would pose for the acquis communautaire, autonomously to adopt measures contrary to the Community law contained 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 measures concerns only the measures mentioned at paragraph 3(b) of Article 153 EC. That competence does not extend to the measures referred to in paragraph 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 concerning 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 complete. It follows that Directive 85/374 seeks to achieve, in those matters, complete harmonisation of the laws, regulations and administrative provisions 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 interpreted 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 application 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 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 measures. 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 legislature to the scope of Directive 85/374 on the approximation of the laws, regulations and administrative provisions of the Member States concerning 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 interests include guaranteeing that competition will not be distorted, facilitating trade within the common market, consumer 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 actions, in the event of minor material damage the victims of defective products 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 liability.

In those circumstances the threshold provided for in Article 9(b) of the Directive cannot be regarded as affecting victims' rights of access to the courts.

Similarly, the fact that different systems 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 )