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Five Forms of Uncertainty in European Community Law

Published online by Cambridge University Press:  16 January 2009

Trevor C. Hartley
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The purpose of this article is to consider uncertainty in European Community law. It will be argued that, for reasons inherent in the nature of the Community, EC legislation is generally less clear and more difficult to interpret than British legislation. Five reasons are put forward as to why this might be so. While always undesirable, uncertainty is perhaps to some extent tolerable where Community legislation gives rights to the individual against public authorities: an uncertain right may, after all, be better than no right at all. It is, however, intolerable where obligations are imposed on the individual. One situation in which this arises is where directives are adopted in the field of private law, a rapidly increasing area of Community legislation. These measures will form the main focus of this study, though our attention will not be confined to them. Before considering these matters, we must, however, set the stage by making some preliminary distinctions.

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The Cambridge Law Journal , Volume 55 , Issue 2 , July 1996 , pp. 265 - 288
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Copyright © Cambridge Law Journal and Contributors 1996

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References

1 Directive 93/13/EEC, OJ 1993, L 95/29.Google Scholar

2 Art. 6(1).

3 This is subject to certain exclusions: see, for example, Art. 1 (2).

4 Art. 2(c). It covers both companies and individuals and includes state-owned entities: ibid.

5 On this, see Bright and Bright, “Unfair Terms in Land Contracts: Copy Out or Cop Out?” (1995) 111 L.Q.R. 655; Attew, , “Teleological Interpretation and Land Law” (1995) 58 M.L.R. 696.Google Scholar

6 Arts. 1(1) and 6(1).

7 Excluding the Annex.

8 Second “Whereas” paragraph.

9 Fifth “Whereas” paragraph.

10 ibid.

11 Sixth “Whereas” paragraph.

12 Seventh “Whereas” paragraph.

13 ibid.

14 Ninth “Whereas” paragraph.

15 Sixteenth “Whereas” paragraph.

16 See, for example, the Sale of Goods Act 1979, s. 61(1).

17 SI 1994 No. 3159.

18 The “Guidance Notes” issued by the Department of Trade and Industry in July 1995 are equivocal on this point. Para. 3.4 states that the Directive's provisions appear to be limited to contracts concerning the sale of goods or supply of services. In para. 3.19, it is said: “As to land, it is arguable that since it is neither a good nor a service, it does not fall within the scope of the Directive.” After referring to counter arguments, however, para. 3.20 concludes that the matter is by no means free from doubt and that it would be prudent to assume that the Directive could extend to transactions in land.

19 The Community has eleven working languages: Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish. Irish has a lesser status.

20 I would like to thank Professor Marc Fallon for the help he has given me on French legal terminology.

21 I would like to thank Professor Ole Lando for information on Danish terminology.

22 Arts. 810 and 812 of the Italian Civil Code. I am grateful to Mr. Andrea Appella for this information.

23 I would like to thank Mr. Jorge Marti for this information.

24 See Art. 1 of Book 3 of the Code. I am grateful to Mr. Harry Duintjer Tebbens for supplying this information.

25 Thus the text in the official language of the Member State holding the presidency could be designated authentic. In the case of Member States with more than one official language, there could be a system of rotation, perhaps depending on the text signed by the president of the Council.

26 This is probably just as well, since considerable difficulties would be caused if the relevant text were in an obscure language spoken by few lawyers outside the country concerned.

27 Stauder v. City of Vim, Case 29/69, [1969] E.C.R. 419 (paragraph 3 of the judgment); see also Mokselv. BALM, Case 55/87, [1988] E.C.R. 3845 (paragraph 15 of the judgment).

28 Stauder v. City ofUlm (above).

29 The author may also be the Commission (which has limited original, and extensive delegated, legislative power) though its legislation is almost invariably of less importance. Since the Maastricht Agreement has come into force, legislation can also be adopted jointly by the European Parliament and the Council: see Art. 189b EC.

30 As far as can be ascertained—its deliberations are held in secret—the Council did not discuss the question whether the Unfair Contract Terms Directive applies to sales of land.

31 Letter from an official of the Commission dated 23 August 1995.

32 The discussion above has been concerned solely with sales of land; the question whether leases or mortgages are covered—on the ground that they constitute the supply of a service—is a separate, though equally difficult, question.

33 It seems that the contract may authorise the supplier to vary only for a specific reason set out in the contract. If the term were varied for some other reason, the variation would then be invalid under the terms of the contract.

34 See the Sale of Goods Act 1979, s. 11 (3)(a).

35 See Arts. 1168–1184 of the French Civil Code.

36 On what this entails, see Art. 148(2) EC.

37 It is not known precisely what occurred when the Unfair Contract Terms Directive was adopted— the Council always meets behind closed doors—but the Commission draft (OJ 1992 C 73/7) differs in a number of ways from the final text. Thus, there is no mention of a valid reason either in what eventually became paragraph 1 (j)—originally paragraph 1 (i)—or in paragraph 2(b) of the Annex. The former referred simply to terms “enabling the seller or supplier to alter the terms of [the] contract unilaterally” and the latter stated: “paragraph l(i) is without hindrance to terms by which a supplier of financial services reserves the right to alter the rate of interest payable by or to the consumer or the amount of other charges for financial services without notice … ” Moreover, the second part of paragraph 2(b) does not feature in the draft: the problem regarding ”terms” and “conditions” did not originally exist. It is also interesting to note that there is no comma after “latter” in the draft. It is not certain what conclusions one can draw from these differences, but it is possible that the problems discussed in the text were not even considered by the Council when the text was amended.

38 OJ 1972, L 299, p. 32. The United Kingdom became a party on joining the Community, and it was put into effect by the Civil Jurisdiction and Judgments Act 1982.

39 See the official report on the Convention, the Jenard Report, OJC 59/1 at p. 26.

40 See per Advocate General Capotorti in Bier v. Mines de Potasse, Case 21/76, [1976] E.C.R. 1735 at 1751, where he said, “Th e imprecision [of the provision] is not fortuitous … [T]he authors of the Brussels Convention … intended to leave open the question concerning the meaning to be conferred upon these words, clearly preferring to charge the courts with their interpretation.”

41 See Bier v. Mines de Potasse (above).

42 Another example from the Brussels Convention is whether Art. 21 of the Convention can apply where a court takes jurisdiction under a convention on a “particular matter” in terms of Art. 57: see the Schlosser Report, OJ 1979 C 59/71 a t pp. 139–140 (paragraphs 239–240), in which it is said that it was decided to leave the solution to “legal literature an d case law”. The answer was given by the European Court in The Maciej Rataj (The Tatry), Case C-406/92, [1994] E.C.R. 5439. For comments, see Briggs [1995] L.M.C.L.Q. 161 (attacking the judgment) and Hartley (1995) 20 E.L.Rev. 409 (attempting to defend it).

43 We are concerned here with unpublished declarations, not with the published declarations that are officially annexed to many of the Community Treaties.

44 Rules of Procedure of the Council, Decision 93/662, OJ 1993 L 304/1, Art. 5(1); see also the Code of Conduct concerning public access to Council and Commission documents (6 December 1993), OJ 1993 L340/41, and Decision 93/731, OJ 1993 L 340/43. See further Curtin & Meijers, “The Principle of Open Government in Schengen and the European Union: Democratic Retrogression?” (1995) 32 C.M.L.Rev. 391 at pp. 417–442. For a legal challenge by a British journalist to a refusal by the Council to disclose certain documents (including the Minutes of a particular meeting), see Carvel v. Council, Case T-194/94, 19 October 1995, The Times, 2 November 1995. The challenge was successful because the Council had adopted a policy of automatically refusing such requests, instead of weighing up the considerations involved in each particular instance.

45 Rules of Procedure (above), Art. 5(2).

46 [1993] A.C. 593.

47 Three Rivers District Council v. Bank of England (No. 2) (27 November 1995), The Independent, 22 December 1995.

48 Case C-292/89, [1991] E.C.R. 1–745.

49 Paragraph 18 of the judgment.

50 Pabon, , “Het Vrije Verkeer van Werknemers binnen de Europese Gemeenschap Deflnitief tot Stand Gebracht!” (1968) 23 Sociaal Maandblad Arbeid 754 at p. 756; Smit and Herzog, The Law of the European Economic Community (loose leaf), PP- 2–484 to 2–485 (§48.04).Google Scholar

51 Regulation 1612/68, O J (Special Ed.) 1968 (II), p. 475 and Directive 68/360, ibid., p. 485.

52 For the United Kingdom, see the Immigration Rules for Control on Entry (EEC and other non-Commonwealth nationals), HC Paper 81 of 1972/73, para. 52, where the three-month period is increased to six months.

53 This view has not, however, been accepted by all the writers: see Smit and Herzog, op. cit. above; Maestripieri, , La Libre Circulation des Personnes et des Services dans la CEE (1971), pp. 15–16;Google Scholar Mégret, Le Droil de la Communauté économiqe européenne, vol. 3, p. 21, n. 29 (1971).

54 Europe, 30 July 1968, p. 5.

55 Pabon, , op. cit. above; Smit and Herzog, op. cit. above; Maestripieri, , op. cit. above (quoted in full in French); Mégret, , op. cit. above; ter Heide, , “The Free Movement of Workers in the Final Phase” (1969) 6 C.M.L.Rev. 466 at p. 476.Google Scholar

56 Case 48/75, [1976] E.C.R. 497.

57 Paragraph 31.

58 These are Regulation 1612/68 and Directive 68/360.

59 Smit and Herzog, op. cit. above; Maestripieri, , op. cit. above. Megret, , op. cit. above. Pabon, , op. cit. above, and ter Heide, , op. cit. above, both cite the agreement but do not say clearly that it creates a legal right.Google Scholar

60 Case 157/79, [1980] E.C.R. 2171.

61 At p. 1292.

62 Case 53/81, [1982] E.C.R. 1035 at p. 1043. It seems that it was put before the Court by the Commission.

63 The Advocate General in the case, Sir Gordon Slynn (as he then was), pointed out that the question was not relevant to the proceedings. For that reason, and also because he was not satisfied it would in any event be right to have regard to it, he did not consider the declaration: see p. 1056.

64 See the words “or desirous of so doing” in para. 9 of its judgment.

65 Centre Public d' Aide Sociale de Courcelles v. Lebon, Case 316/85, [1987] E.C.R. 2811 at p. 2829.

66 Above.

67 In the Antonissen case, Advocate General Damon said that the declaration had been “taken into account” by the European Court in the Levin case: see [1991] E.C.R. at 1–762.

68 The Independent, 23 June 1995, p. 13.

69 Unless this would lead to an absurdity.

70 Hartley, , “The European Court, Judicial Objectivity and the Constitution of the European Union” (1996) 112 L.Q.R. 95.Google Scholar

71 Discussed above.

72 Set out above.

73 Paragraph 10 of the judgment.

74 Paragraph 11 of the judgment.

75 Paragraph 12 of the judgment.

76 The European Court's statement that free movement of workers constitutes one of the foundations of the Community appears to be an attempt to do just this.

77 Case C-145/88, [1989] E.C.R. 3851.

78 See Rawlings, , “The Eurolaw Game: Some Deductions from a Saga” (1993) 20 Jo. of Law and Society 309 at p. 317.Google Scholar

79 Case C-169/91, [1993] 2 W.L.R. (EC)).

80 See, for example, the Efficiency Scrutiny Report commissioned by the President of The Board of Trade, Review of the Implementation and Enforcement of EC Law in the UK (1993), p. 38, paragraph 4.4.

81 By this is meant from the point of view of legal form: we are not concerned here with the substance of the law.

82 In the case of linguistic uncertainty, the best solution would be for the President of the Council to sign only one text. That text should be, in strict rotation, in English, French or German. In cases of conflict, the text signed should prevail. The choice of these three languages may be justified on the ground that French is the main working language of the Community, German the most widely spoken in the Community as a first language and English the most widely spoken overall. Nevertheless, this solution is unlikely to be adopted because the Italians and Spanish would object to the fact that their languages were excluded. Another possibility would be for the French text to prevail in all cases, but this would be blocked by the British and Germans.

83 Most of what is said in this section is too well established to need any citation of authority, but if this is nevertheless required, it may be found in T.C. Hartley, The Foundations of European Community Law (3rd ed. 1994), Chap. 7.

84 This is not, however, necessary if the objective of the directive has already been attained in national law.

85 SI 1994 No. 3159.

86 Neither of these terms is used by the European Court itself.

87 For this purpose, “individual” includes a company; in fact, it covers any legal person other than the State.

88 For details, see Hartley, , op. cit., pp. 218–221.Google Scholar

89 This is because the European Court considers that a directive must have the same meaning in every Member State.

90 This was reaffirmed by the European Court in 1994 in Faccini Dori v. Recreb, Case C-91/92, [1994] E.C.R. 1–3325, despite a strong attack by no fewer than three advocates general (in that case and in two earlier cases).

91 Faccini Dori v. Recreb (above), paragraph 26 of the judgment.

92 Webb v. EMO Air Cargo Ltd [1993] 1 W.L.R. 49 at p. 60 (HL).

93 See above.

94 On this question, it is the English courts that have the final say.

95 Ratti, Case 148/78, [1979] E.C.R 1629 at para. 22 of the judgment.

96 Review of the Implementation and Enforcement of EC Law in the U. K. (1993).

97 Para. 4.19.

98 One way of guarding against this would be to consult the Commission when drafting the implementing measures. It is said that the Commission is reluctant to give an opinion on the meaning of Community legislation; however, if it raised no objection at the time of drafting, it would probably not take action later unless there was a change of circumstances.

99 Cases C–6, 9/90, [1991] E.C.R. 1–5357.

100 This would of course apply only with regard to vendors acting for purposes relating to their trade, business or profession.

101 Subsection (1) provides for the direct effect of Community law in the United Kingdom.

102 Another way of solving the problem would be to amend section 2(2), but there might be political objections to this.

103 Cases C-i6m and C-48/93. Judgment was given on 5 March 1996.

104 Paragraph 55 of the judgment (preliminary edition).

105 ibid. paragraph 56.

106 See also paragraph 63.

107 Paragraph 46.

108 Paragraph 58.

109 Defrenne v. Sabena, Case 43/75, [1976] E.C.R. 455. Under this principle, the ruling applies retroactively as regards the parties to the case and any other persons who have already commenced legal proceedings or made equivalent claims; otherwise, it applies only as from the date of the judgment. See Hartley, , The Foundations of European Community Law, (3rd ed., 1994), pp. 88–89.Google Scholar