Opinion of the Advocate-General
I - Introduction
1. The present case concerns an action brought by the Commission, pursuant to Article 226 EC, against the Hellenic Republic for failure to comply with obligations under the Treaty on the grounds that the Greek legislation transposing Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (hereinafter: the Directive) did not comply with Article 9(b) of the Directive. Contrary to what is laid down in that provision, the Greek Government failed, according to the Commission, to transpose into its national law the lower threshold of EUR 500 specified therein.
2. Article 9(b) of the Directive reads as follows:
(b) damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of [EUR] 500, provided that the item of property:
(i) is of a type ordinarily intended for private use or consumption, and
(ii) was used by the injured person mainly for his own private use or consumption.
II - Appraisal
3. The subject-matter of this case is almost the same as that of Case C-52/00 Commission v France and Case C-183/00 González Sánchez v Medicina Asturiana in which I delivered my Opinions on 18 September 2001. As in the present case, the key question in those cases was whether the Directive provides for exhaustive harmonisation or whether it involves harmonisation at a minimum level. In the former case, the national legislature is completely bound by the Directive and may not, as regards liability for defective products, afford the national consumer protection which exceeds that expressly permitted by the Directive. In the second case, the Member States do indeed have the power to do so.
4. In support of its view that the Directive provides for minimum harmonisation, the Greek Government puts forward arguments in this case which are similar to those which it put forward in its written observations in González Sánchez. The tenor of those arguments is virtually the same as those which the French Government advanced in its defence in Case C-52/00.
5. I would like to refer to the considerations in this regard which I set out at paragraphs 27 to 55 of my Opinion in that case, and on the basis of which I concluded as follows:
- Directive 85/374/EEC seeks to bring about complete harmonisation in respect of strict liability for defective products;
- the national legislature may derogate from the Directive only if and in so far as provisions thereof expressly permit such derogation, regard being had to the conditions and requirements attached thereto in the Directive.
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6. The specific arguments which the Greek Government puts forward for the incomplete transposition of Article 9(b) of the Directive are unconvincing.
7. The reference to the national system of private law fails in this case for the reasons set out at paragraph 69 of my Opinion of 18 September 2001.
8. Similarly, the fact that a lower threshold of EUR 500 constitutes a reduction in the legal protection already afforded to the consumer by the Greek legislation does not provide any grounds for not transposing in full what is laid down in Article 9(b).
9. The argument that the abolition of that lower threshold was envisaged in the Green paper - Liability for defective products of 28 July 1999 similarly does not bear scrutiny. Due regard for the powers which the Community legislature enjoys under the EC Treaty requires that the Court refrain from giving judgments which anticipate, or may anticipate, its decision-making.
10. At paragraphs 63 to 69 of the abovementioned Opinion I have already appraised, and held to be unfounded, the Greek Government's contention that the lower threshold is incompatible with Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms.
11. Finally, as regards the argument derived from the ninth recital in the preamble to the Directive, it must be observed that this recital sets out the reasons why a lower threshold is incorporated in Article 9(b). No argument can be found either in this recital or the wording of Article 9(b) itself for not transposing the lower threshold which is prescribed without qualification.
III - Conclusion
12. In the light of the foregoing, I propose that the Court should:
(a) declare that the Hellenic Republic has failed to fulfil its obligations under Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products;
(b) order the Hellenic Republic to pay the costs pursuant to Article 69(2) of the Rules of Procedure.
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