Product liability

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Product liability
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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

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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)

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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

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Concepts

• Product (art. 2)
• movables
• agricultural products amendment (Directive
  1999/34)
• information?

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• 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

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• 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

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• 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)

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• The Skovæg decision, C-402/03
• The problem
• The two questions referred to the ECJ
• Transfer to the supplier of the producers no
  fault liability
• Transfer to the supplier of the producers fault
  liability
• The underlying problems which the ECJ has to
  address

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• 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

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• 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

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• 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

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• 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)

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