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

Abstract

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.

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References (24)

  1. Th e Art 267 TFEU case law is replete with references to this overriding concern. See eg Case 66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato [1981] ECR 1191 and Case 314/85 Firma Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199. 102 On this topic, see J Smits, 'Th e Complexity of Transnational Law: Coherence and Fragmenta- tion of Private Law' , TICOM Working Paper 2010/01, available at http://ssrn.com/abstract=1538187\. 103 Lonsdale v Howard & Hallam Ltd, Court of Appeal: [2006] EWCA Civ 63, [2006] 1 WLR 1281, [2006] ICR 584; House of Lords: [2007] UKHL 32, [2007] 1 WLR 2055.
  2. See King v T Tunnock Ltd, 2000 SC 424; although it should be noted that other courts preferred to examine all the circumstances in an attempt to make a 'fair and proportionate award': Tigana Ltd v Decoro Ltd [2003] Eu LR 189. 105 Or perhaps not: Case C-456/04 Honyvem Informazioni Commerciali Srl v Mariella De Zotti
  3. ECR I-02879 aff orded some discretion to Member States concerning the method for calcu- lating compensation in this context; see, further, Lord Hoff mann's judgment in the House of Lords in Lonsdale (n 103) paras 16-20. agency relationship has the other diffi culty of leading to negligible compensation where the agency involved is of a fi xed-term nature and has expired due to the passage of time (ibid, 504). Moore-Bick LJ's judgment here seems to focus upon 'preventing the unjust enrichment of the principal through its receiving the goodwill generated by the agent "free of charge"' (ibid, 504). 107 Ibid, 503. 108 And one which has not met with universal approval: see eg, for criticism, L Macgregor, 'Compensation for Commercial Agents: An End to Plucking Figures from the Air?' (2008) 12 Edin- burgh Law Review 86; and, for cautious praise, A McGee, 'Termination of a Commercial Agency-Th e Agent's Rights' [2011] Journal of Business Law 782.
  4. A point emphasised by both Macgregor (n 108) and S Saintier, 'Final Guidelines on Compen- sation of Commercial Agents' (2008) 124 Law Quarterly Review 31; and note the words of Staughton LJ in the earlier cases of Page v Combined Shipping and Trading Co [1997] 3 All ER 656, 660: the two purposes of the Commercial Agents Directive are 'fi rst[, the] harmonisation of the law of Member States … so that people compete … on a level playing fi eld … the second objective is one which appears to be a motive of social policy, that commercial agents are a down-trodden race, and need and should be aff orded protection against their principals' .
  5. S Leible, 'Th e Approach to European Law in Domestic Legislation' (2003) 4 German Law Journal 1266, 1268. 111 See Smits (n 102) 9.
  6. Leur-Bloem (n 91).
  7. See s 74(2) of the Consumer Protection Act 2007.
  8. See Law Commission and Scottish Law Commission, Consumer Redress for Misleading and Aggressive Practices: A Joint Consultation Paper (Law Commission Consultation Paper No 199, Scottish Law Commission Discussion Paper No 149, April 2011). See, most recently, Law Commis- sion and Scottish Law Commission, Consumer Redress for Misleading and Aggressive Practices (Law Commission Consultation Paper No 332, Scottish Law Commission Discussion Paper No 226, 28 March 2012).
  9. I am deeply indebted to Graeme Dinwoodie for our discussions on this nascent, but fasci- nating, topic, which he has discussed (in his remarks at the conference 'European Methods and Interactions in the Field of Intellectual Property Law' (Jesus College, Oxford, 7-8 January 2012)) under the heading of 'vertical coherence' between EU and (sometimes harmonised) national law in the trade marks fi eld.
  10. Originally, Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark [1993] OJ L11/1; now codifi ed in Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codifi ed version) [2009] OJ L78/1.
  11. Originally, First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks [1989] OJ L40/1, now codifi ed in Directive 2008/95/ EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Codifi ed version) [2008] OJ L299/25. 138 Smalley v Crown Court, Warwick [1985] 1
  12. All ER 769, 779.
  13. See eg A Kavanagh, 'Pepper v Hart and Matters of Constitutional Principle' (2005) 121 Law Quarterly Review 98. 141 Pepper v Hart [1993] All ER 42.
  14. See ibid, 64, per Lord Browne-Wilkinson, with whose speech the majority in their Lordships' House concurred. 143 Mirvahedy v Henley [2003] UKHL 16, [2003] 2 AC 491.
  15. For discussion, see S Deakin, BS Markesinis and A Johnston, Markesinis & Deakin's Tort Law, 7th edn (Oxford, Oxford University Press, 2012) 532-36.
  16. However, a number of their Lordships explicitly found them not to have been helpful in divining the proper approach to s 2(2). See Mirvahedy v Henley (n 143) Lord Slynn, para 60, Lord Hobhouse, para 65, Lord Scott, para 102 and Lord Walker at paras 158-60, either due to their lack of clarity, to changes wrought to the Law Commission's proposals or due to apparent misunder- standings in some of the statements made by Ministers to Parliament during the passage of the Bill. 146 I am grateful to Sebastian Martens for discussions on this topic.
  17. Leigh & Sillivan Shipping v Th e Aliakmon Shipping Co (Th e Aliakmon) [1986] AC 785. For discussion, see Deakin, Markesinis and Johnston (n 144) 157-73; and Markesinis and Unberath (n 40) 303ff . See, generally, H Unberath, Transferred Loss: Claiming Th ird Party Loss in Contract Law (Oxford, Hart Publishing, 2003) esp 123-28.
  18. Alfred McAlpine Construction v Panatown [2001] 1 AC 518, 557. 161 For discussion, see Deakin, Markesinis and Johnston (n 144) 155-57 and Unberath (n 159)
  19. ch 8. 162 On these questions under English law generally, see R v International Stock Exchange ex parte Else [1993] 1
  20. All ER 1042 and R v Minister for Agriculture, Fisheries and Food ex parte Portman Agrochemicals [1994] 3 CMLR 18. For general discussion, see T de la Mare and C Donnelly, 'Prelimi- nary Rulings and EU Legal Integration: Evolution and Stasis' in P Craig and G de Búrca (eds), Th e Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011) ch 13. 163 Eg the Unfair Terms in Consumer Contracts Directive (n 12). Cases such as Offi ce of Fair Trading v Abbey National [2009] UKSC 6, [2010] 1 AC 696, suggest themselves. See Council Direc- tive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products [1985] OJ L210/29 and A v National Blood Authority [2001] EWHC 446 (QB), [2001] 3
  21. All ER 289.
  22. See eg M Howe, 'Oakley Inc v Animal Ltd: Designs Create a Constitutional Mess' (2006) 28
  23. European Intellectual Property Review 192.
  24. See eg P Johnston, 'Who Will Defend Our Free Speech?' , Daily Telegraph, 2 April 2007. 171 Ahmed v Secretary of State for the Home Department [2010] UKSC 2, [2010] 2 WLR 378, discussed by A Johnston and E Nanopoulos, 'Th e New UK Supreme Court, the Separation of Powers and Anti-terrorism Measures' (2010) 69 Cambridge Law Journal 217.