‘Spillovers’ from EU Law into National Law: (Un)intended Consequences for Private Law Relationships (original) (raw)

The Involvement of EU Law in Private Law Relationships

359 equality rights in national employment law (see Defrenne, 3 and what is now Article 157 TFEU (ex Article 141 EC)); and the freedom of movement for workers (see Angonese, 4 and what is now Article 45 TFEU (ex Article 39 EC)). 5 Similarly, a number of horizontally directly eff ective provisions can be found in secondary legislation, such as the recent passenger rights Regulations in air 6 and rail transport, 7 allowing the enforcement of rules by customers against transport service providers who are (in some fi elds increasingly) private parties (rather than state bodies à la Foster v British Gas) 8 for EU law purposes. Where a total harmonisation Directive-the Unfair Commercial Practices Directive (UCPD) provides a strong recent example-covers a particular fi eld, such replacement/ substitution is also clear. 9 B. Subject Matter of EU Law is Focused Upon a Different Area, but that EU Law Rule has Clear and Direct Consequences for National Private Law by Virtue of a Direct, Superior EU Law Rule Th is category is very similar to the fi rst, although its focus is rather more coincidental than direct in the impact of EU law. Th us, there is the perhaps unexpected 3 Case 43/75 Defrenne v Sabena (No 2) [1976] ECR 455. 4 Case C-281/98 Angonese v Cassa di Risparmio di Bolzano [2000] ECR I-4139. 5 A similar practical eff ect can be achieved by the application of directly eff ective free movement provisions where Member States seek to impose restrictions going beyond the minimum standards laid down in EU Harmonising legislation (as discussed at sections II.C and D below), such as measures which are more protective of consumers than in the relevant Directives. For an outline in the consumer protection fi eld, see H Unberath and A Johnston, 'Th e Double-Headed Approach of the ECJ concerning Consumer Protection' (2007) 44 Common Market Law Review 1237, 1245-52. Similarly, the application of vertically directly eff ective Treaty provisions, such as Art 34 TFEU, see eg Case 286/81 Oosthoek's Uitgeversmaatschappij [1982] ECR 4575, may prevent the application of a national law rule which might otherwise have protected a consumer defendant from a particular commercial practice. 6 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of fl ights, and repealing Regulation (EEC) No 295/91 [2004] OJ L46/1. 7 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers' rights and obligations [2007] OJ L315/14. 8 Case C-188/89 Foster v British Gas [1990] ECR I-3313. 9 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ L149/22 ('Unfair Commercial Practices Directive' (UCPD)). For a vivid recent illustration with regard to German law, where a more consumer-protective national provision in the Unlauteren Wetbbewerbsgesetz (UWG) was held precluded by the UPCD, see Case C-304/08 Zentrale zur Bekämpfung unlauteren Wettbewerbs v Plus Wahrenhandelsgesellschaft [2010] ECR I-217. Henceforth, no blanket ban could be imposed on the relevant clause (which made the participation of consumers in a lottery conditional on the purchase of goods or the use of services); rather, its unfairness had to be assessed on a case-by-case basis. Th e earlier Joined Cases C-261 and 299/07 VTB-VAB and Galatea [2009] ECR I-2949 followed the same approach, because the relevant practices in all of these cases did not appear in the exhaustive list of 31 presumptively unfair practices in Annex I to the UCPD.