英文欧洲侵权法中的举证责任倒置SSRN-id1542678

* Ivo Giesen is Professor of Private Law at the Molengraaff Institute of Private Law, Utrecht University School of Law(for correspondence: Nobelstraat 2a, 3512 EN Utrecht, the Netherlands; i.giesen@uu.nl). This paper is a revised version of a contribution that was previously published in Dutch in 2007 AV&S, no. 41, pp. 271-276, in a series of articles that compared the PETL with Dutch tort law. Many thanks to Ton Hartlief and Siewert Lindenbergh for their critical comments on an earlier draft of that article. 1 See European Group on Tort Law, Principles of European Tort Law. Text and Commentary, 2005 (this work will be quoted below as: EGTL (author), Article x:xxx, Comment x); J. Spier & O.A. Haazen, ‘The European Group on Tort Law (Tilburg Group) and the European Principles of Tort Law’, 1999 ZEuP, pp. 469 et seq., as well as . Further reading is also listed below. 2 Cf. H. Koziol, ‘Die “Principles of European Tort Law” der “European Group of Tort Law”’, 2004 ZEuP, p. 234. http://www.utrechtlawreview.org/ Volume 6, Issue 1 (January) 2010 22 The reversal of the burden of proof in the Principles of European Tort Law A comparison with Dutch tort law and civil procedure rules Ivo Giesen* 1. Introduction In 2005, the European Group on Tort Law (EGTL), in a widely acclaimed effort to contribute to the further harmonisation of the law of tort in Europe, published its Principles of European Tort Law (hereafter: the PETL or Principles).1 The PETL are meant to serve as common princi- ples of ‘European tort law’ (if that already exists at all) and as the starting point for the future discussion on the possible harmonisation or even unification of tort law in Europe.2 Under these Principles, especially in cases of liability based on fault, the burden of proving fault is in some instances ‘relaxed’ or even ‘mitigated’ through the acceptance of a reversal of that burden of proof. For one thing, the mere possibility of such a reversal is already somewhat surprising since the PETL are predominantly devoted to substantive law issues; the PETL do, however, also contain a number of specific provisions on the subject of the burden of proof even though this is quite generally regarded as a procedural law topic. Next, the inclusion in the PETL of such burden of proof rules is highly relevant since in practice a reversal of the burden of proof leads to a tightening of liability. Of course, such a rule might (still) be accepted but, given its effect on the substantive outcome of tort cases, this should only be the case if and when such a decision can be normatively justified. Hereafter, I will try to show that these issues as to the burden of proof merit our full attention because the much needed normative justification for the choices made in the PETL is not always sufficiently forthcoming. I will do so by contrasting the Principles with the rules on the burden of proof in Dutch tort law. In the following contribution I will thus analyse the burden of proof rules in the PETL not only from a more technical point of view, but also from the perspective of the possible influence they might have on the substantive outcome of tort cases. To highlight their content, importance and possible inspirational force for a future European tort law, I will contrast them with their counterparts under Dutch tort law. I will try to answer the question whether the choices made in The reversal of the burden of proof in the Principles of European Tort Law 3 See more in general on the substantive side of the issue of fault: Article 1:101, in combination with Article 4:101 PETL. 4 Cf. I. Giesen, ‘The Burden of Proof and other Procedural Devices’, in: H. Koziol & B.C. Steiniger (eds.), European Tort Law 2008, 2009, nos 4-5. The rule itself actually dates from Roman times, as evidenced in the classic saying ‘actori incumbit probatio, reus excipiendo fit actor’, see K-H. Schwab, ‘Zur Abkehr moderner Beweislastlehren von der Normentheorie’, in: W. Frisch (ed.), Festschrift für H-J. Bruns, 1978, pp. 516 et seq. 23 the PETL are justifiable and whether the Dutch tort system can – or maybe even should – seek inspiration from these PETL. In doing so, I will first provide the reader with the text of the Principles involved (Section 2), and then further analyse and explain these Principles, including a discussion of the relevant Dutch law in that regard (Sections 3-10). In the concluding section I will determine whether the Dutch tort law system – or any other system for that matter – can ‘benefit’ or learn from the apportionment of the burden of proof in the PETL (Section 11). In that evaluation I will also provide an assessment of the subject in its entirety from the perspective of whether we are on the right track towards a ‘European tort law’ if we follow the principles as they now stand (if and to the extent that such a European tort law might indeed be considered desirable). 2. The text of the PETL as regards the burden of proof In the PETL two provisions have been devoted to the subject of this paper, i.e. the reversal of the burden of proof in certain cases of liability arising from fault on the part of the person addressed.3 As we will later discern, these rules serve as an exception to the internationally self-evident and (therefore?) non-articulated general rule that the burden of proof in the case of fault is borne by the claimant.4 The provisions laid down in Section 2 of Chapter 4 PETL read as follows: ‘Article 4:201 Reversal of the burden of proving fault in general (1) The burden of proving fault may be reversed in the light of the gravity of the danger presented by the activity. (2) The gravity of the danger is determined according to the seriousness of possible damage in such cases as well as the likelihood that such damage might actually occur.’ ‘Article 4:202 Enterprise liability (1) A person pursuing a lasting enterprise for economic or professional purposes who uses auxiliaries or technical equipment is liable for any harm caused by a defect of such enterprise or of its output unless he proves that he has conformed to the required standard of conduct. (2) “Defect” is any deviation from standards that are reasonably to be expected from the enterprise or from its products or services.’ Preceding these provisions, in the chapter on ‘damage’, we also find a provision on ‘proof’. It concerns Article 2:105 PETL which states: ‘Article 2:105 Proof of damage Damage must be proved according to normal procedural standards. The court may estimate the extent of the damage where proof of the exact amount would be too difficult or too costly.’ IVO GIESEN 5 In this paper I will not go into detail concerning other evidential items, often prima facie irrefutable presumptions (‘regarded as’, see e.g. Article 3:103(1) and (2), and Article 3:104(3) PETL) or refutable presumptions (‘presumed’, in Article 3:105 PETL), in the third chapter on causality. See further on that chapter from PETL: J. Kortmann, ‘PETL: General Conditions of Liability, Causation (“In Fact”)’, 2007 AV&S, no. 23, pp. 151 et seq. 6 See on this general rule on the apportionment of the burden of proof I. Giesen, Bewijs en aansprakelijkheid, 2001, particularly pp. 75-108, and (for tort law in particular) pp. 112-130; W.D.H. Asser, Bewijslastverdeling, 2004, p. 59 et seq.; P. Widmer, ‘Comparative Report on Fault as a Basis of Liability and Criterion of Imputation (Attribution)’, in: P. Widmer (ed.), Unification of Tort Law: Fault, 2005, no. 66; R. Stürner, ‘Beweislastverteilung und Beweisführungslast in einem harmonisierten Europäischen Zivilprozeß’, in: G. Hohloch et al. (eds.), FS für Hans Stoll zum 75. Geburtstag, 2001, p. 692, and Giesen, supra note 4, nos 4-5. 7 This general rule is only mentioned in the Explanatory Comments, see EGTL (Widmer), Article 4:201, Comment 1, on p. 90 and Comment 5 on p. 91, where it discusses a ‘general principle’. 8 We can see the same thing, e.g., in C. van Dam, European Tort Law, 2006, no. 1004-2, who discusses the possibility of shifting the burden of proof, thereby assuming that the burden of proof generally lies with the claimant. Again, this is not strange because this is the rule, but since we are here discussing exceptions we should (also) be aware of the general rule. 9 Cf. Giesen, supra note 6, p. 75. 24 Below I will discuss and explain the first two provisions in particular (in Sections 3-9), but subsequently I will also briefly touch upon the third provision quoted above (Section 10).5 3. Article 4:201 PETL and what they do not say… but should have said It is important to stress from the outset in any analysis of the burden of proof rules in the PETL that the allocation of the burden of proof itself is an aspect that is not explicitly included in these Principles, namely a generally worded provision such as ‘the burden of proving the requirements regarding liability lies with the party that is relying on this remedy’, or a better formulated variation thereof. This would have clarified that also the PETL are based on the general rule regarding the burden of the proof. This general rule (that the claimant must prove that the requirements for liability have been met6) is followed everywhere and is considered self-evident. The possible reversals of this burden of proof, which are discussed in the PETL and in this paper, form exceptions to such a general rule. There is, however, no trace of such a general rule at all in the PETL.7 This implies that such a rule must be deduced from the fact that Article 4:201 does address the reversal of that burden of proof, thus implicitly stating that there is some rule to reverse, to deviate from.8 Although this general rule is thus taken for granted by the drafters of the PETL, I would advocate that it should be made more explicit after all. Since the PETL do not state from which starting point (i.e., which general rule) one can or must start reasoning when embarking upon (an argument for) a reversal of the burden of proof, we miss out on information that might be useful when studying such an exception to that general rule.9 The question as to how such a general rule on the division of the burden of proof would have been formulated, if dealt with at all, must then be solved by following the obvious explanation, namely that the drafters of the PETL undoubt- edly would have had the customary general rule described above in mind had they indeed taken action in this regard. 4. Reversal of the burden of proof in light of the ‘gravity of the danger’ After having cleared this hurdle we can now focus on the envisaged possibilities of reversing the burden of proof. I will then restrict myself to the burden of proof regarding fault, or fout as a Dutch tort lawyer would call it. Article 4:201 Paragraph 1 PETL opens up the possibility of a reversal if ‘the gravity of the danger presented by the activity’ gives rise to this. One has to choose one’s words carefully here, because the provision also does this. The burden of proof may, as it is stated, be reversed if the The reversal of the burden of proof in the Principles of European Tort Law 10 EGTL (Widmer), Article 4:201, Comment 2 on pp. 90-91 and Comment 7 on p. 92. 11 See e.g. Widmer, supra note 6, no. 66; Giesen, supra note 6, pp. 467 and 469 (particularly note 119), and Van Dam, supra note 8, nos 1004-2 and 1005; Koziol, supra note 2, p. 250; N. Jansen, ‘Principles of European Tort Law?’, 2006 RabelsZ 70, pp. 749-751 and p. 767. 12 See for more information: EGTL (Widmer), Article 4:201, Comments 8 and 9 on pp. 92-93. Jansen, supra note 11, p. 766, is very much in favour of the idea of bridging the gap. 13 See EGTL (Widmer), Article 4:201, Comment 5, on p. 91, and more generally on the reasons for a reversal, Giesen, supra note 6, pp. 409-421 (the justification chosen here shows a strong resemblance to the apportionment of proof in accordance with ‘Gefahrenbereich’, see ibid., pp. 413-414). 14 See EGTL (Koch), Article 4:202, Comment 21 on p. 99. 15 Cf. Giesen, supra note 6, pp. 443-444 (and ibid., p. 410 et seq. for an overview of the normative arguments). In the same vein Jansen, supra note 11, p. 767; E. Schmidt, ‘Die Beweislast in Zivilsachen – Funktionen und Verteilungsregeln, Juristische Schulung’, 2003 JuS, p. 1010, and Giesen, supra note 4, nos 6-9. 16 The factual situation (i.e. the difficulty for one of the parties to submit evidence) will more readily be a reason to consider changing the apportionment of the burden of proof; for more details see Giesen, supra note 6, p. 419 and p. 455 et seq. 25 danger involved in the activity is sufficiently great. I will return to this later in more detail (in Sections 6-7). The aim of the provision, according to the Explanatory Comments by the drafters of the PETL,10 is to build a bridge between the fault-based liability of PETL and strict liability in the sense of Article 5:101 PETL. If, for whatever reason, there is not (yet) any latitude or necessity for strict liability, the burden of proof may still lead to a certain tightening up of liability. This idea is obviously not a new one; the burden of proof is often used to narrow the ‘gulf’ between fault-based liability and strict liability and to tighten up liability.11 Its incorporation in a general (statutory) rule, however, and not just for certain specific cases, does seem to be exceptional.12 Whether this exceptional situation will turn out to be a fortunate choice requires more analysis, however. I will therefore return to (the text of) Article 4:201 PETL and will make three more remarks thereon. 5. The rationale behind Article 4:201 PETL First of all, I would like to discuss the rationale behind the rule, the reason(s) for its incorporation in the Principles. This rationale is closely related to the more usual reasons put forward to justify the reversal of the burden of proof, namely that it seeks to improve the position of the plaintiff. It does so in particular by meeting the victim halfway if the application of the general rule regarding the allocation of the burden of proof would result in unreasonable difficulties for that plaintiff due to the technical or organizational complexity of the defendant’s activities (and resulting in facts which are difficult to prove due to a lack of clarity).13 The reasons mentioned for accepting the enterprise liability of Article 4:202 PETL could also have been used here (such as the ‘beneficiary pays’ principle, the channelling of liability or insurance coverage as a result thereof).14 As far as I am concerned, it would have made the foundations for the reversal of the burden of proof much stronger because it would have made legal policy and normative consider- ations arguments (and not just the mainly factual arguments, which vary depending on the case) decisive.15 As far as I am concerned, normative points of view, and not factual situations, should in the first instance govern the allocation of the burden of proof and the reversal of this burden, if any.16 The reason why I arrive at this conclusion is that the reversal of the burden of proof leads to a tightening up of liability and this must be capable of being normatively justified. IVO GIESEN 17 It remains a question which court this should be as long as the PETL have not been accepted as the law in a particular country or that a special court will be created for that purpose, but that is yet another issue. 18 For criticism of Dutch law on this issue (the equity theory) see Giesen, supra note 6, pp. 89-102. 19 It must be said, though, that the condition to which the reversal of the burden of proof in the PETL has been subjected is at least laid down; Article 150 of the Code of Civil Procedure is more vague in this respect (it does not subject it to any conditions as reasonableness and fairness do not mean anything in this respect). 20 It is thereby also made clear, once more (see also T. Hartlief, ‘PETL: Basic Norm and Liability based on Fault’, 2007 AV&S, no. 8, p. 54), that there is a strong focus on the courts, which means litigation, while we may assume that the majority of cases are ‘settled’ out of court. 21 See G. Wagner, ‘The project of harmonizing European tort law’, 2005 Common Market Law Review 42, p. 1288, and also pp. 1289-1290. 22 See already Giesen, supra note 6, p. 444. 23 Cf. on the preference for ‘special rules’ regarding the burden of proof, Giesen, supra note 6, pp. 98-100. 24 On this, see Hartlief, supra note 20, particularly pp. 49, 52 and 54. 25 According to the instructions in the Explanatory Comments, see EGTL (Widmer), Article 4:201, Comment 4, on p. 91. 26 In that vein EGTL (Widmer), Article 4:201, Comment 3 on p. 91, on the element ‘extent of the damage’. 26 6. A discretionary reversal of the burden of proof: What is the law? A second striking aspect is that this reversal of the burden of proof implies that the court is vested with discretionary powers,17 including all the freedom that this entails. In itself, there is nothing untoward in this as our national laws are riddled with discretionary powers and the principle of reasonableness and fairness mentioned in Article 150 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) enables the Dutch courts to use their discretionary powers to the full. But having said this, there is still a certain degree of friction. It is disturbing that discretionary powers such as these – and the same applies to the reasonableness and fairness exception in Article 150 Code of Civil Procedure – provide so few guidelines regarding the application of the provision in question.18 The court may reverse the burden of proof, but does not have to do so, not even if the required conditions are satisfied.19 But what, then, can the citizen seeking justice expect? What will he be able to rely on beforehand? Will there be a reversal of the burden of proof, and if yes, in which case?20 Wagner therefore speaks of the ‘concert of vagueness’ after having listed a number of comparable ‘may’ provisions found in the PETL.21 Are the criteria mentioned and used in these Articles (more about this later) decisive for their application or not, he wonders. I agree with him.22 It would have been better, in my view, to introduce a rule which provides conditions that are as clearly formulated as possible and which allow the courts to reverse the burden of proof in certain cases – which then also imply that they must do so in those cases. That rule would then resemble a special rule regarding the burden of proof in the sense of Article 150, second sentence Code of Civil Procedure.23 7. The conditions for applicability, if known, are difficult to apply I have argued that these types of discretionary provisions lead to uncertainty as to whether or not the criteria or conditions mentioned for their application are decisive. An additional factor – and that is my third point – is that the ‘norm’ regarding the ‘gravity of the danger presented by the activity’ is unclear. Although Paragraph 2 of Article 4:201 lays down a more detailed description of the term ‘gravity of the danger’, this description once more leads the user of the PETL24 to a (weighing of a) number of factors, in this case the likelihood that such damage might actually occur and the gravity of such possible damage. If the activity at stake often leads to damage or even serious damage, a reversal of the burden of proof can be an option. This will apply all the more so if there is often damage of a serious kind.25 The latter case is no longer, as far as I am concerned, a situation which is halfway between a normal risk (and thus a regular fault-based liability) or an abnormally high risk (which is subject to strict liability) for which the reversal of the burden of proof has been created,26 but a case in which strict liability should be seriously The reversal of the b