Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 1 6 THE EMERGENCE OF A COMMON EUROPEAN LAW IN THE AREA OF TORT LAW: THE EU CONTRIBUTION. WALTER VAN GERVEN* The emergence of a common European tort law is brought about by three factors, or driving forces, each of which has its own rationale. First, there is European Community (EC) law where the rationale for developing tort rules is to make a remedy in compensation available for individuals whose ‘Community rights’ have been infringed by Community Institutions, Member States or other individuals. Second, there is the law of the European Convention of Human Rights (ECHR) where the rationale is the preservation, through the award of damages, of ‘Convention rights’ of individuals against infringements by Contracting States. Third, there is comparative law. Today one rationale of comparative law beyond understanding one anothers’ legal systems is to promote convergence and homogeneity between legal systems of States which, as the Member States of the European Union, are engaged in a process of integration. Within such a framework of integration comparative law has become an instrument, in the area of tort law as in others, to prepare legislation and to enforce it, through remedies before domestic courts, in a sufficiently uniform manner in all of the Member States.1 In this contribution I will deal with the first factor of convergence only. I. THE DIRECTIVES ON PRODUCT LIABILITY AND E-COMMERCE: EUROPEAN COMMUNITY LEGISLATION AS A SOURCE OF COMMON RULES The most obvious and direct impact of EC law on the domestic laws of the Member States is when the EC legislature expressly requires Member States to include in their national tort law specified rules that prescribe certain conditions as giving rise to tortious liability on the part of all or some defined class of persons toward other persons … who are to enjoy the benefit of the required rules. Such legislation may leave Member States with some latitude in relation to the conditions that are to be prescribed in the definition of the required tortious liability (…).2 Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 2 A prime example of Community legislation is Directive 85/374 concerning liability for defective products3 which so far has brought about the most far-reaching change in the tort law of the Member States as a result of EC harmonisation measures.4 Obviously, the alterations are limited to the specific issues covered by the Directive and, even then, subject to a number of elements which are left to the discretion of the Member States. The most important of these elements is whether a Member State wants to make available to producers the so-called ‘product liability risk defence’ allowing the producer to escape liability if ‘the state of scientific and technical knowledge at the time when he put the product into circulation, was not such as to enable the existence of the defect to be discovered’ (Article 7 (e); in combination with Article 15 (b) of the Directive). The defence was finally included in the national implementing legislation of, for instance, Germany, France and the UK. That does, of course, not preclude the European Court of Justice (ECJ) from interpreting the directive provision on which the defence is based, if the issue is raised before the Court either directly in an action, under Article 226 (ex 169) EC, against a Member State which has not correctly or not completely implemented the Directive, or by way of a preliminary ruling, under Article 234 (ex 177) EC, when the Directive needs interpretation in a litigation pending before a national court between public or private parties. The former occurred in case C-300/95, Commission v UK, which was decided by judgment of 29 May 1997.5 In that judgment the Court held that the state of scientific and technical knowledge of which the producer must prove that it was not such as to enable him to discover the defect, includes the most advanced level of knowledge generally, and not only in the industrial sector concerned; that such knowledge must be taken in an objective (and not merely a subjective) sense, ie. knowledge ‘of which the producer is presumed to have been informed’; provided, the Court added, that such knowledge was accessible to the manufacturer at the time when the product was put into circulation.6 Although the UK legislation implementing the Directive was not unambiguous7, the ECJ dismissed the EU Commission’s contention that Article 7(e) had not been properly implemented by the UK. To reach that conclusion the Court took into account that no material was produced to the Court indicating that the courts in the UK would not interpret the national implementing act in accordance with the wording and the purpose of the Directive.8 The Commission v UK case illustrates the way in which EC legislation, in conjunction with case law of the ECJ, influences the development of national tort law.9 That is obviously the Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 3 case when a directive is properly transposed but also, as follows from the above judgment, when a directive is not transposed in a fully unambiguous manner, in that situation because of the duty for national courts to interpret domestic legislation in conformity with Community law. French legislation, which was long overdue to implement Directive 85/374,10 offers an example of how that duty may take effect even when the national legislator has not implemented the Directive at all. For indeed, ‘French courts, under the lead of the Cour de cassation took it upon themselves to interpret French law in such a way as to introduce Directive 85/374 in the case law’, mainly by extending ‘the contractual obligation de sécurité incumbent upon the manufacturer and trade seller beyond the contractual realm to third-party victims of defective products’.11 The Cour de cassation, in a judgment of 9 July 1996, went even so far that it used itself the discretion which the Directive had left to the Member States’ legislature, by holding that the defence of Article 7(e) was not available under French law.12 Insofar as it related to contaminated blood, the judgment was confirmed by Law of 19 May 1998: indeed, although the defence was introduced in Article 1386-11(4) of the French Code civil, Article 1386-12 did not make it available to the producer ‘if the injury was caused by a part of the human body or parts taken from the human body’. Harmonisation of national laws is far from perfect: it is often based on a compromise between national systems and, once effected, does not, of itself, guarantee convergence to remain for ever. An analysis of English, French and German law before and after the implementation of Directive 85/37413 shows for instance that: ‘Product liability…provides an excellent case-study of the interaction between Community and national laws. Against the background of fairly different national laws…, Directive 85/374 purported to create a harmonised regime, whose coherence was however affected by the specific dynamics of Community law-making, including the need to compromise’. Moreover, caveat emptor: ‘Its implementation nevertheless shows how quickly a harmonised text can start to be ‘de- harmonised’ again…’.14 A judgment of the German Bundesgerichtshof of 9 May 1995 offers an unfortunate example of such ‘de-harmonisation’ or ‘re-nationalisation’.15 In that judgment the German Supreme Court decided that the defence of Article 7(e) of the Directive, as included in § 1(2), under 5, of the Produkthaftungsgesetz of 15 December 1989, can be raised only where the loss arises from a design defect, not where it arises from a manufacturing defect. The Court made that decision of its own initiative, refusing to submit any question of interpretation to the ECJ, on the ground that, since Member States had been left free not to introduce the product Andenas, Bell, Fairgrieve MS. Num. VanGerven 15 August 2002 Page 4 development risk at all, a national court, when asked to interpret implementing legislation, could also of its own initiative determine whether that legislation had adopted the defence and to what extent.16 More recently the ECJ rendered another judgment, this time in a preliminary ruling procedure brought at the request of the Danish Supreme Court. The judgment concerns the interpretation of Article 7(a) of Directive 85/374, which excludes liability for a defective product that is ‘not put… into circulation’.17 The main question submitted to the ECJ was whether a defective product must be held to have been put into circulation where the product (in that case a perfusion fluid produced and prepared for use in hospitals owned by a municipality) was used in one of the hospitals in the course of a specific medical service (ie. in preparing a kidney for transplantation) and where the damage caused (the kidney becoming unusable for the operation) resulted from the preparation of the product. The ECJ answered that question in the affirmative adding, in reply to a second question, that the exemption from liability referred to in Article 7(c) of the Directive (concerning activities having no economic purpose) does not cover the use of a defective product in the course of a medical service just because that service in the municipal hospital is entirely financed from public funds. When liability arises in consequence of the Directive, as implemented in national law, the producer ‘shall be liable for damage caused by a defect in his product’ (Article 1), which means, according to Article 9, that he must compensate ‘damage caused by death or by personal injuries’ and ‘damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of 500 [Euro]’.