British Institute of International and Comparative Law

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British Institute of International and
Comparative Law'Reviewing the Review the
European Commission's Third Review of the Product
Liability Directive.' Outstanding issues, and
a look to the future

• Rod Freeman
• Partner, Product Liability
• 5 December 2006

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Background to the 3rd Report the Lovells Study

• Survey of the practical operation of product
  liability systems in the EU
• Covered all (15) Member States
• Input from all operators, including government
  representatives, producers, distributors,
  consumer groups, academics and lawyers

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The Lovells Report
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The Lovells Report
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The Lovells Report key findings

• Product liability claims are on the increase

Extent to which product liability claims have
increased in past 10 years
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The Lovells Report key findings

• Factors leading to increase

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The Lovells Report key findings

• 2. Product liability risks differ between Member
  States

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The Lovells Report key findings

• 3. Overall, there is a high level of acceptance
  of the Directive, which is generally regarded as
  striking an appropriate balance

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The Lovells Report key findings

• 4. No obvious case for fundamental reform
• The Commission should monitor developments
• The Directive as part of a wider, dynamic scheme

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The Fondazione Roselli Report

1. The development risks defence performs an
   important economic function, and it should not be
   removed
2. A compensation scheme for those injured by
   development risks should be considered

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Product liability in the EU where are we now,
where are we going?

• Reform off the agenda?
• not quite.

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Product liability in the EU where are we now,
where are we going?

• The concept of defect
• Foster v Biosil/Richardson v LRC Products
• A v National Blood Authority/Bogle v McDonalds

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Product liability in the EU where are we now,
where are we going?

• The development risks defence
• Advocate-General in European Commission v UK
• A v National Blood Authority
• A worthless defence? Perhaps not
• French Pentasar case (September 2004)
• Italian blood products case (April 2006)

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Product liability in the EU where are we now,
where are we going?

• Defence of regulatory compliance?
• Kitchen Stove, Case (1998)
• Swiss Elevator case (2004)
• Pollard v Tesco Stores (2006)

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The future?

• Ongoing monitoring by the Commission
• Changes in the broader liability environment
• Procedural reforms?
• Regulatory reforms
• Development of experience with GPSD
• REACH