Product Liability Directive 1985
The Product Liability Directive 85/374/EEC is a directive of the Council of the European Communities (now the European Union) which created a regime of strict liability for defective products applicable in all member states of the European Union, the other EEA members (Iceland, Liechtenstein and Norway) and (at least until the end of the Brexit implementation period) the United Kingdom.
| European Union directive | |
| Text with EEA relevance | |
 | |
| Title | Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products |
|---|---|
| Made by | Council of the European Union |
| Made under | Art. 100 TEEC |
| Journal reference | L210, 07/08/1985, pp. 29-33 |
| History | |
| Date made | 25 July 1985 |
| Came into force | 30 July 1985 |
| Implementation date | See table detailing implementation by state |
| Other legislation | |
| Amended by | 1999/34/EC |
| Substantially amended | |
Background
A system of strict product liability had developed in the U.S. by the early 1960s, but not in the countries of the then European Economic Community.[1][2] The Council adopted a resolution in 1975 for a preliminary programme on consumer protection and information technology.[3][4] Moves towards a strict liability regime in Europe began with the Council of Europe Convention on Products Liability in regard to Personal Injury and Death (the Strasbourg Convention) in 1977.[5] The Pearson Commission in the UK noted that this work had started, and refrained from making their own recommendations.[6] A second EU programme followed in 1981.[7]
The preamble to the directive cites Art. 100 (subsequently renumbered to Art. 94, then to Art. 115) of the Treaty of Rome and the aim to achieve a single market:
The Council shall, acting unanimously on a proposal from the Commission, issue directives for the approximation of such laws, regulations or administrative provisions of the members states as directly affect the establishment of the common market.
The preamble then goes on:
... approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products is necessary because the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property;
... liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production;
Content
Articles 1 to 12 create a scheme of strict product liability for damage arising from defective products. This liability is in addition to any existing rights that consumers enjoy under domestic law (article 13).
The directive does not extend to nuclear accidents, these being covered by existing international conventions (article 14). The original directive did not extend to game or primary agricultural produce (article 2) but this exception was repealed by directive 1999/34/EC following concerns over BSE.[8]
Development risks defence
Article 15(1)(b) of the directive gives member states the option of adopting the development risks defence:
1. Each Member State may:
...
(b) by way of derogation ... maintain ... or provide in [its] legislation that the producer shall be liable even if he proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of a defect to be discovered.
As of 2004, all EU member states other than Finland and Luxembourg had taken advantage of it to some extent.[9]
Implementation by state
Because EU directives do not have direct effect, they only come into force on persons in member states when implemented in national legislation. Article 19 demanded implementation within 3 years.[10]
| Member state | Means of implementation | Date of implementation | Comments |
|---|---|---|---|
| Belgium | Loi du 25/02/1991 relative à la responsabilité du fait des produits défectueux - Wet van 25/02/1991 betreffende de aansprakelijkheid voor produkten met gebreken. Moniteur belge du 22/03/1991 Page 5884 | 25 February 1991 | |
| Czech Republic | 1. Zákon o odpovědnosti za škodu způsobenou vadou výrobku 2. Zákon, kterým se mění zákon č. 59/1998 Sb., o odpovědnosti za škodu způsobenou vadou výrobku |
? | |
| Denmark | Lov nr. 371 af 07/06/1989 om produktansvar. Justitsmin.L.A. 1988-46002-11. Lovtidende A haefte 58 udgivet den 09/06/1989 s.1260. JLOV | 9 June 1989 | |
| Estonia | Võlaõigusseadus | ? | |
| France | Act 98-389, Arts 1386-1 to 1386-18 of the Civil Code | 19 May 1998 | |
| Germany | Produkthaftungsgesetz | 15 December 1989 | |
| Republic of Ireland | Liability for Defective Products Act 1991 | 4 December 1991 | |
| The Netherlands | Wet van 13 September 1990 houdende aanpassing van het Burgerlijk Wetboek aan de richtlijn van de Raad van de Europese Gemeenschappen inzake de aansprakelijkheid voor produkten met gebreken | 1 November 1990 | |
| United Kingdom | Consumer Protection Act 1987 | 1 March 1988 | |
Review
Article 21 demanded that the Commission report to the Council on the application of the directive every five years.
| Date | Reference | Principal recommendations |
|---|---|---|
| 12 December 1995 | COM/95/617 final | None |
| 9 February 2000 | COM/2000/0893 final | Consultation of the basis of a Green Paper[11] was carried out before the review. No changes to directive but recommendations on further data gathering and expert review[12] |
| 14 September 2006 | COM/2006/0496 final | None[13] |
Notes
- Clark (1989) pp13-12
- van Gerven (2000) pp638-639
- Official Journal of the European Community [1975] C 92/2
- van Gerven (2000) p.643
- "European Convention on Products Liability in regard to Personal Injury and Death". Council of Europe. 1977. Retrieved 2008-04-30.
- Berlins, M. (17 March 1978). "Pearson Report: Plan for 'no fault' compensation for road accident victims financed by petrol tax". The Times. p. 4, col D.
- OJ [1981] C 133/1
- Shears (2001)
- Giliker & Beckwith (2004) 9-029
- "Council Directive 85/374/EEC - national provisions". EUR-Lex. Retrieved 2008-04-16.
- European Commission (1999)
- "Report from the Commission on the Application of Directive 85/374 on Liability for Defective Products". EUR-Lex. Retrieved 2008-04-16.
- "Third report on the application of Council Directive on the approximation of laws, regulations and administrative provisions of the Member States concerning liability for defective products". EUR-Lex. Retrieved 2008-04-16.
References
- Clark, A. M. (1989). Product Liability. London: Sweet & Maxwell. ISBN 0-421-38880-3.
- Craig, P. & De Búrca, G. (2003). EU Law: Text, Cases and Materials. Oxford: Oxford University Press. pp. Ch.28 Completion of the Single Market. ISBN 0-19-924943-1.
- European Commission (1999) Green Paper - Liability for defective products, COM(1999)396 final
- Giliker, P. & Beckwith, S. (2004). Tort (2nd ed.). London: Sweet & Maxwell. pp. 9–014 - 9–038. ISBN 0-421-85980-6.
- Hodges, C. (1998). "Development risks: Unanswered questions". Modern Law Review. 61 (4): 560–570. doi:10.1111/1468-2230.00163.
- McGee, A. & Weatherill, S. (1990). "The evolution of the single market - harmonisation or liberalisation?". Modern Law Review. 53 (5): 578–596. doi:10.1111/j.1468-2230.1990.tb01826.x.CS1 maint: multiple names: authors list (link)
- Shears, P.; et al. (2001). "Food for thought - What mad cows have wrought with respect to food safety regulation in the EU and UK". British Food Journal. 103 (1): 63–87. doi:10.1108/00070700110383217.
- van Gerven, W.; et al. (2000). Cases, Materials and Texts on National, Supranational and International Tort Law. Oxford: Hart Publishing. pp. pp643–683. ISBN 1-84113-139-3.