The events of past weeks have brought into sharp focus the seemingly different attitudes held by a majority of the UK population compared to other EU member states. The result, whilst at present uncertain, may well be a full uncoupling of the UK legal system from European law. It is interesting to note, therefore, that even though EU law has for many years moved towards a harmonisation of legal principles across the legal systems of its constitutent members, significant differences have remained. This is ably demonstrated by the recent high court decision in Committeri v Club Medieterranee SA (2016) EWHC 1510.
Mr Committeri was on a team building exercise in France which was organised by his (London-based) employer, BNP Paribas. The activity involved climbing an ice-wall. Whilst he was being belayed he slipped and fell. Although he was caught by the rope he struck his foot during the fall, sustaining injury. The activity was organised by the Defendant tour operator, based in France, with whom BNP had entered a contract for the provision of travel, accommodation and the activity for its employees. The contract contained a ‘Law and jurisdiction clause’ which provided that the booking conditions would be governed by English law.
It was common ground that if English law applied to the claim, it would fail. This was because the Claim would be governed by the Package Travel Regulations 1992 (the UK's implementation of the EU Package Travel Directive) which had been interpreted by the Court of Appeal in Hone v Going Places (2001) EWCA Civ 947 as requiring proof of fault, which the Claimant accepted he could not establish. on the facts However, if the claim was governed by French law, it would succeed. This was because in France, the EU Package Travel Directive had been interpreted differently by the French courts, imposing a strict liability. Accordingly, the same Directive, implemented into two legal systems, had resulted in two very different standards of liability.
The critical question for the court was whether or not the Claimant’s claim under French law was non-contractual/tortious, or contractual. If it was tortious (and therefore governed by the Rome II Regulation (EC 864/2007)) the ‘choice of law’ clause in the booking conditions did not apply and the claim would succeed under French law. If his claim was contractual (and therefore governed by the Rome I regulation (EC 593/2008) )the choice of law clause would lead to the application of English law, and the claim would fail.
The Court accepted that whether something was non-contractua/tortious or contractual had to be considered by reference to freestanding European law concepts which do not necessarily have the same meaning as domestic law. Nonetheless, the judge was wholly satisfied that the cause of action in France was a domestic one. The French courts had considered that the ‘proper performance of the contract’ (the wording of the Directive and the French tourism code) in a package holiday setting requires absolute consumer safety, but it was clear that the liability was still one arising from the contract entered into between BNP and the Defendant. It was also significant (although not decisive) that under both country’s domestic legal regimes, the Courts had characterised claims arising from the directive (as implemented) as contractual. The symmetry between domestic and European law was therefore an relevant factor.
The result was that the claim failed. Perhaps ironically, if the same case, on identical facts, were to be tried again in 2 years’ time, it is impossible to predict what the outcome would be. Watch this space!