shown a willingness to shift the burden of proof to defendants in relation to local rules, although without the approval of higher courts to date. The article concludes that neither the United Kingdom nor the 27 EU Member States currently intend to harmonise the application of the burden of proof in this matter, which generates a persistent and likely long-lasting tension between robust consumer protection and respect for the procedural autonomy of Member States. As readers will no doubt be aware, the courts of England and Wales operate within a system of precedent – that is, the law is not tabulated, as in some jurisdictions, by way of a unified Civil Code, but is derived from a mixture of sources, encompassing statute, regulation, and previous decisions of courts of an equal or higher status within the court hierarchy. Now that the UK has Brexited, the decisions of the Court of Justice of the European Union are no longer binding within this hierarchy, but are of persuasive authority only. As both the UK and the EU27 prepare to amend their respective versions of the Package Travel Directive (Directive 2015/2302), with the UK’s proposal to be found here: The Package Travel and Linked Travel Arrangements (Amendment) Regulations 2026, it may be a timely moment to consider one of the less examined areas in which Member States, and the UK, currently diverge, and in respect of which there are no plans to achieve harmonisation. Although Member States strive to achieve harmonisation, they also recognise that it is the prerogative of each individual legal system in each state to devise its own procedural rules; the EU may legislate as to substantive law, but the procedural rules to be applied by any particular court must be mandated by the governing body of that court. One very important, but under-examined, aspect of this differentiation is the concept that rules as to burden of proof form a part of the substantive law of each individual legal system (cf for example Article 22 of Regulation (EC) No.864/2007 (Rome II) as to tort law), and yet (like rules as to limitation periods) tend not to be subjected to harmonisation. This can give rise to results which we as international lawyers may find curious. Some of the Member States of the EU27 direct that the burden of proof should rest on a claimant; others state that it should fall on a defendant; others still that the burden of proof may shift depending on the particular circumstances of the case. As a consequence, a claim brought in one Member State might succeed, whereas it would fail in another because the claimant had failed to prove his or her case. This is not a glitch but a feature of EU law; it is not intended that a claim would have the same outcome in each 24 SARAH PRAGER
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