Details – expert information

Product Liability

The Directive 85/374/EEC on liability for defective products (Product Liability Directive) wants to assure that

  • products introduced to EU market are safe,
  • innovation is strengthened,
  • consumers who suffer injury because of defective products are able to claim compensation when damage occurs

The challenge at the age of digitalization remains in a fair balance of risks between consumer, distributer and producer.

View on Terminology

  • Defect is defined by lack of safety and not by fitness for use of the product which can be expected including certain aspects. E.g. presentation of the product. time of circulation.
  • Damaged person must prove different aspects covering defect, damage, and causal relationship.
  • Liability for all who present themselves as producers, incl. importers and persons.
  • Non-liability of producers e.g. in case of certain conditions:
    Either no placement of product into circulation, no manufacturing, no distribution In case the defect did not exist when the product was placed on market. Or if the defect appears although being compliant with mandatory regulation.
  • Applying restriction is e.g. a limitation period of 3 years for claims.

EU Statistics on Product Liability

Product categories concerned

Within the period of 2000-2016 the recurrence of claims in the EU, subject to national case law, can be clustered by different product categories:

52% of the claims (total number 547) are related to three product categories, i.e. raw materials (21%), pharmaceutical products (16%), vehicles (15%).

The category nuclear reactors, boilers, machinery and mechanical appliances amounted to more than 12%.

In a one-digit area we find the sectors

  • chemicals (7%),
  • agricultural goods (7%),
  • electrical machinery and equipment and others (6%)
  • food & beverage (3%),
  • clothes and accessories (2%) or
  • cosmetics (nearly 2%).

Source: Final Report on Evaluation of Council Directive 85/374/EEC on the approximation of laws, regulations and administrative provisions of the Member States concerning liability for defective products, published on 05.07.2018, p. 20

Systems used to settle

Directive-related claims are settled through direct negotiation in 46% of the cases, whereas 32% are resolved in court and 15% through alternative dispute resolution systems. Only a small share (7%) of the claims under the Directive are settled through other means, such as settlements with the insurer of the responsible entity

Broken down per Member State, 60% or more of the claims are settled:

  • In court (in EE, FR, PL, RO, FI);
  • Through alternative dispute resolution mechanisms, such as arbitration, mediation, negotiation, conciliation or other mechanisms provided for by national legislation (in BG, EL, LT);
  • Through direct negotiation (in CZ, HR, IT, HU, IT, CY, PT, SE);
  • Through settlement with the insurer (in SI).”

All categories of stakeholders indicated that extra-judicial arrangements represent a common way to settle cases, and that most cases are settled out of court.

Source: Final Report on Evaluation of Council Directive 85/374/EEC on the approximation of laws, regulations and administrative provisions of the Member States concerning liability for defective products, published on 05.07.2018, p. 18

Number of claims over the years

The following table shows the development by number of claims per year from the year 2000 to 2016, adjusted per new Member State entries.

The graphic shows the development by number of claims per year from the year two thousand to two thousand and sixteen, adjusted per new Member State entries. From thirty claims in the year two thousand, the number has risen to almost sixty claims in two thousand and sixteen. The peak was in two thousand and fifteen with sixty claims. Most claims come from within the EU seventeen, whereas the number of claims from two thousand and four entries, as well as Bulgaria, Romania and Hungary has risen over time, beginning in two thousand and one and now making up roughly a quarter to a third of all claims.
Source: Study for the evaluation of Directive 85/374/EEC in 2018, p. 22

Other related legal Frameworks

Besides, further legal frameworks demonstrate the EU's permanent interest in product safety. The responsibilities of economic operators are addressed e.g. by the precautionary principle, the General Product Safety Directive, the Product Safety and Market Surveillance Package.

Current research

Product Liability: European Laws and Practice, Prof. Christopher Hodges, Oxford University

Abstract - The enforcement of the Product Liability Directive 85/374 has applied a uniform system of strict liability to producers within the EC in addition to the pre-existing fault liability systems. Other countries in Europe are also changing their national laws to bring them into line with the Directive, thereby promoting trade in Europe. "European Product Liability" provides the text of the directive in English, French and German, a detailed commentary on its provisions and gives a clear overview of the major differences in the implementing legislation throughout Europe. There is a chapter on the steps which can be taken to reduce manufacturers' risks and one covering product liability insurance. The book also includes an analysis of the legal provisions affecting product liability in every EC Member State and five EFTA countries. The established theories of liability, and new implementing legislation are discussed in each case by a lawyer practising in that country. The contributing editors also give outline guides to the litigation system of their countries, and the implementing legislation is reproduced in English and the national language.

Product Liability: European Laws and Practice, Prof. Christopher Hodges, Oxford University

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