French delicacy

The ECJ has a steady diet of 'actions for failure to fulfil obligations' in which the commission asserts that a member state has failed to comply with EU law. Most concern the non-implementation, or inadequate implementation, of a directive. Very few raise, individually, any significant or interesting point of law.

Case C-383/09 Commission v France (4th Chamber, 9 June 2011) is a rare exception. It concerned France's attempts to implement the habitats directive (directive 92/43/EEC, as amended) so as to protect the European hamster, cricetus cricetus, in Alsace. The hamster was listed in the directive as a 'species of community interest in need of strict protection'. This was supposed to mean that member states would prohibit 'deterioration or destruction of breeding sites orresting places'.

There is no doubt that the action taken by France was, in terms of its results, highly unsuccessful. The hamster was threatened with extinction in France, and continued to decline throughout the decade from 2001.

The court referred to evidence that the number of burrows in the main areas used to assess the species' population had fallen from more than 1,000 to fewer than 200. But that in itself could not be enough to show that France was liable; the hamster might evade even the most well-meaning attempts at strict protection (as many hamster-loving children have found).

The ECJ first considered what the legislation requires. One might read it as imposing a rather minimal obligation to put in place national rules to stop physical damage to hamster 'homes'. But, considering a number of previous cases, the ECJ took a broader view. The objective is to protect habitats, and member states must adopt a 'comprehensive legislative framework' and must 'implement concrete and specific protection measures'. The measures must be 'coherent and coordinated', and must be such as to 'enable the effective avoidance of deterioration or destruction of breeding places or resting sites'.

So expressed, the obligations imposed under the directive are positive and onerous, and, if the continued decline of a species does not, in itself, prove breach, it raises strong suspicions. The ECJ looked at what France had done, and found it seriously wanting. The hamster needed mixed agricultural land, including grassland and lucerne, and standing corn. That traditional pattern of agriculture is being destroyed, partly by urban sprawl, and partly by increasing cultivation of endless fields of maize. That much was understood, and, although France protested that it had made some attempts to address those issues, it was '“ the court thought '“ too little, too late.

Certainly too late, one might fear, for the European hamster. In one sense the case demonstrates the willingness of the ECJ to construe legislation so that it is effective. But the history of the case before it came to the court, and the long delay of several years between the start of the problem and any action by the commission, and again between the start of enforcement and the ECJ's judgment, show the problem.

Taken together, a decade passed, during which nothing happened except the continuous decline of the species that the legislation was supposed to protect. Unless there is a real will on the part of member states, or real determination on the part of the commission to enforce the legislation, and to take active steps to monitor it, this sort of environmental legislation looks doomed.

Motor insurance

Under various directives, dating back to 1972, member states are required to ensure that motor vehicles are insured against civil liability for personal injury to other road users.

In 2002, an insured vehicle struck and killed a young boy who was riding his bicycle on the wrong side of the road in a village in Portugal. Tragic as this was, the courts that considered the case all found that the child, by being on the wrong side of the road, was solely and exclusively responsible, and that the driver was not in any way at fault. The Portuguese court, however, wondered whether this outcome was incompatible with the directives on insurance. Did it circumvent their policy?

One might think that the answer is simple: the directives are concerned only with insurance against civil liability, not with the rules governing civil liability itself. That is indeed the starting point, but it cannot be quite so simple, because the ECJ has recognised that if a member state simply refused to allow compensation for road accidents this would negate the purpose of the directives, while possibly complying with the letter. So there is some interference with rules which prevent compensation in a 'disproportionate manner' to ensure that the insurance serves its purpose, which includes compensating accident victims.

However, the ECJ saw no possible grounds for saying that rules which deprive people of compensation where their own fault has exclusively caused the accident are disproportionate. What seems to matter is that the reduction in compensation is carefully measured against the victim's contribution to the events, so that proportionality is maintained. On that basis, systems of reduction of damages for contributory negligence, such as England's, are acceptable.

It is only if minor contributions to the accident, or slight fault, can mean that the victim loses all or most of the compensation that would otherwise be due, that the directives designed to deal with insurance begin to interfere with national tort rules.