Defective products: liability

SUMMARY OF:

Directive 85/374/EEC — product liability

SUMMARY

WHAT DOES THIS DIRECTIVE DO?

It establishes the principle of liability without fault applicable to European producers. Where a defective product* causes damage to a consumer, the producer may be liable even without negligence or fault on their part.

KEY POINTS

Damage covered

The directive applies to damage:

—	caused by death or by personal injuries,

—	caused to private property.

EU countries may set a limit for the total liability of a producer in the case of death or personal injury caused by identical items with the same defect.

Liability

A producer can mean:

—	the producer of a raw material, the manufacturer of a finished product or of a component part,

—	the importer of the product,

—	any person putting their name, trade mark or other distinguishing feature on the product,

—	any person supplying a product whose producer or importer cannot be identified.

Where 2 or more persons are liable for the same damage, they shall be liable jointly.

Proof of damage

A product is defective where it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:

—	the presentation of the product,

—	the reasonable use of the product,

—	the time when the product was put on the market.

The injured person carries theburden of proof . They must prove:

—	actual damage,

—	a defect in the product,

—	a causal link between the damage and the defect.

However, he does not have to prove the negligence or fault of the producer or importer.

Exemption from liability

A number of factors can exempt a producer from liability including if:

—	they did not put the product into circulation,

—	the defect appeared after the product was put into circulation,

—	the product was not manufactured by them to be sold or distributed for profit

—	the product was not manufactured or distributed by them for any purpose within the usual transactions and practices of their business,

—	the defect is due to compliance of the product with mandatory regulations issued by public authorities,

—	the defect of a component was caused during the manufacture of a final product.

When the injured person is at fault, the producer’s liability may be reduced.

Expiry of liability

—	The injured person has 3 years within which to seek compensation. This period starts from the date on which the injured person became aware of the damage, the defect and the identity of the producer.

—	The producer is no longer liable 10 years after the date the product was put on the market.

—	No contractual clause may allow the producer to limit his liability in relation to the injured person.

—	National laws on civil liability still apply.

FROM WHEN DOES THE DIRECTIVE ENTER INTO FORCE?

It entered into force on 30 July 1985. EU countries had to incorporate it into national law by 30 July 1988.

BACKGROUND

Liability of defective products

KEY TERM

* Product: all movable objects, even when incorporated into another movable or into an immovable object. It includes electricity, primary agricultural products (products of the soil, of stock-farming and of fisheries, excluding products which have undergone initial processing - e.g. cutting, peeling and freezing fruit and vegetables) and game.

ACT

Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, 7.8.1985, pp. 29–33)

last update 19.01.2016