Product liability

Background

• Product liability in the EU prior to the directive– Tort law – fault based liability– Contract law

• Only available to parties to the contract• Warranties - sometimes also available to third

parties

The directive 1985/374 on liability for defective products

• Basic idea: strict liability

• Purpose– avoid distortion of competion and– protect consumers

• Type of directive?

• Coverage– Certain types of product liability cases– Non exhaustive regulation– Allows for two stringed systems (art.13)

Basic liability principles

• Cases covered by the directive: – Strict liability:

• Art. 1: • The producer shall be liable for damage caused by a defect

in his product

– Mandatory liability regime (art. 12)

• Supplemental liability regimes: – Tort law: fault liability– Contract law

Concepts

• Product (art. 2)– ”movables”– agricultural products – amendment (Directive

1999/34) – information?

• Defect (art. 6)• No distinction between different types of defects such as:

– fabrication defects– design defects– failure to warn

• One unifying concept: ”The safety which a person is entitled to expect”

• Cirumstances which must be taken into account: – The presentation of the product– The use to which it could reasonably be expected that the

product would be put– The time when the product was put into circulation

• ”put into circulation” (art. 7 (a))– C-203/99 Henning Veedfald v. Århus

Amtskommune– C-127/04 Declan O’ Byrne v. Sanofi Pasteur

MSD LTD

• ”for economic purposes” (art. 7( c ))– C-203/99 Henning Veedfald v. Århus

Amtskommune

• Producer (art. 3)– Manufacturer of the finished product, etc. (para 1)– Someone who represents himself as the producer

(para 1)– The EU importer (para 2)– The supplier, if the producer or importer is unknown

(para 3)

• The supplier?– C-402/03 (Skovæg)

• The Skovæg decision, C-402/03:• The problem• The two questions referred to the ECJ:

– Transfer to the supplier of the producer´s no fault liability

– Transfer to the supplier of the producer´s fault liability

• The underlying problems which the ECJ has to address

• Damage (art. 9)– Death and personal injuries– Property damage, provided the item is a type

ordinarily intended for private use or consumption and in fact used in this way

– Property other than the defective product– Threshold of 500 ECU

• Other types of damage?– C-285/08 Société Moteurs Leroy Somer v. Société

Ace Europe

• The ”state of the art” defence (art. 7(e))– ”That the state of scientific and technical

knowledge at the time when he put that product into circulation was not such as to enable the existence of the defect to be discovered”

• C-300/95 Commission v. United Kingdom

• The problem

• The test– Knowledge in the specific industrial sector or

knowledge in general?– Subjective or objective standard?– Level of knowledge?– ”Accesibility”

• National decisions:– German decison (1995): NJW 1995.2162,

Mineralwasserflasche, (scope of application of the state of the art defence)

– Dutch decision (1999) NJI 1999.621, Scholten v. Sanguin Blood Supply Foundation (The requirement: ”the existence of the defect cannot be discovered”)

– English decision (2001) 3 All ER 289, A and others v. National Blood Authority (The requirement: ”the existence of the defect cannot be discovered”)