Burden of Proof in the Consumer Acquis and in the Draft Common Frame of Reference: Law, Fact and Things in Between

Abstract

Burden of proof concerns fact, but not law. From a sense of the inadequacy of this over-simple starting-point, the author of this article considers whether there is any consistent view in either the consumer acquis or the DCFR as to the appropriate object of burden of proof: should it go beyond raw fact and extend to the characterisation of facts in legal terms? In order to do so, he first considers two broad elements which contribute to the ways in which European lawyers understand the line between fact and law (whether in the national or in the EC law context): the relative generality of legal propositions and the procedural and institutional significances of the distinction itself. Having then briefly explained what he means by ‘raw fact’ and ‘pure law’, he seeks to identify three broad categories of things in between: the application of relatively simple legal concepts to raw facts; the application of evaluative legal concepts to raw facts; and legal characterization beyond raw facts. In each of these (and with illustrations from national law, the acquis and the DCFR) he seeks to show that the laws considered can and sometimes do extend the application of burden of proof from its core home of pure fact (where its remit is to allocate the risk of uncertainty as to past actions, intentions or events) so as to allocate the risk of uncertainty in judicial decision-making in the application of the law and not merely in the finding of facts. The conclusion reached, though, is that while examples of all these ‘things in between’ can be found in both the acquis and the DCFR, there is no overall consistent approach as to the question whether burden of proof should be restricted to pure fact or extended to the characterisation of facts. This inconsistency should not, however, be considered as itself a sign of incoherence: the appropriateness of the allocation of risk in the application of the law should be determined by reference to the particular context of the legislation in question and as a function of the tension between its purposes, the principle of effectiveness and the principle of the national autonomy of civil procedure.