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Defective products: impact and suggestions on liability (Green Paper)
1) OBJECTIVE
To find the optimum system for compensating the victims of damage caused by defective products and improving the quality of products, without dampening industry's capacity for innovation.
2) ACT
Commission Green Paper of 28 July 1999: Liability for defective products [COM(1999) 396 final - Not published in the Official Journal].
3) SUMMARY
Liability for defective products is regulated by Directive 85/374/EEC, as amended by Directive 1999/34/EC. The aims of this Green Paper are to assess the application of this Directive by industry and consumers and to make suggestions for a possible revision.
The Commission proposes taking the following elements into consideration in assessing the impact of Directive 85/374/EEC:
Application of Directive 85/374/EEC
Firstly, the Green Paper seeks to assess the impact of Directive 85/374/EEC with regard to the objectives set, by inviting those concerned to measure the impact on:
Proposals
Secondly, the Green Paper makes some suggestions for a possible amendment of Directive 85/374/EEC. First of all, it recalls the principle of balance on which the Directive is based - a compromise between the interests of victims, who want maximum protection at minimum price, and producers, who are in favour of liability ceilings and the shortest possible liability periods. The Commission is in favour of maintaining this balance.
Without questioning the principle by which the burden of proof lies with the victim, the Green Paper is concerned with the practical implications of this. In practice, to obtain compensation, the victim of damage caused by a defective product has to prove not only that the product was defective but also the causal link between this defect and the damage suffered. This can be a very complicated and costly procedure. The Green Paper presents several options to facilitate this burden of proof:
Directive 85/374/EEC provides for the option of freeing producers from liability if the state of scientific and technical knowledge at the time when they put the product into circulation was not such as to enable the existence of a defect to be discovered. Whilst several Member States have already ruled out this option unilaterally (the Directive leaves it to the discretion of the Member States), the Green Paper considers the possible impact of such a move:
The Commission then questions the need to maintain the financial limits laid down by the Directive, in terms of the:
Directive 85/374/EEC sets a limitation period of ten years for producer liability. Despite the foreseeable financial risk for companies and their insurance companies, this period could be extended to cover damage which appears after ten years.
With regard to producer liability insurance, the Green Paper mentions the following alternatives:
With regard to transparency, in particular where the producer's liability is in dispute, the Green Paper refers to two types of initiative implemented in the United States:
Similar initiatives could be envisaged and included in the Community product liability regime.
The Green Paper then examines the conditions under which the supplier's liability can be questioned. For example, should the liability without fault regime instituted by Directive 85/374/EEC apply to every link in a product's supply chain where this activity affected the safety characteristics of a product put onto the market, for example during repackaging, transport or storage?
The definition of the scope of the Directive is also tackled. Should it be extended to include immovable property? Moreover, the current liability regime only covers death or physical injury and damage to goods for private use. Should non-material damage, psychological injury and damage to property used for professional purposes continue to be excluded?
The final proposal contained in the Green Paper concerns access to justice for victims of defective products, with a particular emphasis on injunctions and collective actions.
4) implementing measures
5) follow-up work
The Commission's second report on the application of Directive 85/374/EEC [COM(2000) 893 final], is based largely on the results of the consultation initiated by this Green Paper.
Additional information is available on the website of the Directorate-General for Enterprise and Industry.
Last updated: 23.05.2005