Dan Tench on the implementation of EU directives

Many lawyers must have struggled to understand the Commercial Agents (Council Directive) Regulations 1993. Their confusion is not helped by the attitude the Government takes to implementing the EU directives.

These regulations, which were passed to comply with an EU Council directive, contain numerous provisions which are difficult to interpret. For example, the regulations state that an agent may recover damages: "In circumstances which have not enabled the commercial agent to amortise the costs and expenses that he had incurred in the performance of the agency contract on the advice of his principal."

Many questions arise. Do these costs include revenue costs which one does not amortise? Will a mere suggestion by the principal to the agent suffice, or must he positively instruct the agent? What does amortise mean in any case? The regulations do not say, and the DTI guidance notes say simply that it is for the courts to decide.

The regulations reflect almost verbatim the wording of the directive. The Government will say that it cannot depart from the exact wording of a directive and that if it were to do so it may be held not to have properly implemented it. This would mean that it runs the risk of a person who cannot make a claim against another person because of such improper implementation recovering from the Government instead. However, the EU treaty requires national government to implement directives as to the ends to be achieved – the purpose is to ensure that such rules are put into practice in a way that reflects the local environment in each member state. By enacting directives verbatim and in an unclear way, the Government leaves itself open to the charge of failing in this duty.

EU law is never going to be a perfect fit with English law and it will always give English lawyers headaches. But the Government's practice of enacting European directives without appropriate refinement can make things worse and may lead to increased uncertainty and litigation, with ensuing costs.

Dan Tench is a litigation solicitor at Lovell White Durrant.