Product Liability

The EU has, over the years, adopted a number of general and specific Directives in the area of product liability. Please see Chart on pages 90-97. For instance, in specific areas of risk regulation and management, there have been Directive 88/378/EEC (toys); Directive 91/368/EEC (machinery safety); Directive 2001/37/EC (sale and presentation of tobacco products); Directive 2002/34/EC (cosmetics); and Directive 2002/8/EC (cross-border funding of legal aid for dispute resolution and requiring member countries to provide effective legal access to consumers, whether by funding lawyers or by facilitating some form of contingency fee mechanism

There have also been Directives of very broad and general scope: Directive 85/374/EEC (creation of no fault, strict liability regime), Directive 1999/34/EC (strict liability for defective and unsafe products), Directive 92/59/EEC (general safety requirement that "no producer shall place a product on the market unless the product is a safe product") and Directive 200I/95/EC (general product safety and introducing the obligation upon manufacturers to notify the relevant government authorities if they have information that a product of theirs poses a risk to consumers, which may lead to mandatory product recalls).

All of these Directives will be taken up (or have been taken up) into national legislation by the New EU Accession Countries. Similar product liability legislation already exists in Norway and Switzerland. The product liability Directives have not only (1) the primary goal of protecting consumer safety but also have the goals (2) of ensuring the free movement of goods within a Single Market, operating under substantially similar liability regimes and (3) minimising distortions of competition under different national liability legislation.

The term "product" is interpreted very broadly but Directive 85/374/EEC allowed EU member countries to choose not to adopt (that is, to "opt out") of a definition which would have included unprocessed agricultural products and wild game as "products". Most EU countries have opted out, but Finland, France, Luxembourg and Sweden have adopted the definition into their national legislation.

Various defences to liability may be available, such as that the defect was attributable to compliance with EU law, that the defect did not exist at the time the product was sold or that the state of scientific and technical knowledge at the relevant time was such that the manufacturer would not have been able to discover the defect. This latter defence is sometimes called the "development risks defence". It is available in all EU countries, except Finland, Luxembourg and Spain. Whether the defence is effective depends upon the facts and circumstances of the case. See, for example, A. v. National Blood Authority [2001] 3 All E. R. 289 (also cited on page 67 in the Chapter on "Bioscience") (development risks defence failed, regarding contaminated blood, although the scientific measures needed to screen for the Hepatitis C virus were unavailable at the time); Sanquin Foundation case (District of Amsterdam, decided 3 February 1999, NJ 1999, page 321, defence available and successful because defendant had acted in accordance with the state of scientific and technical knowledge at the time the blood was donated).

This Chapter will examine how two European countries, namely Italy and the UK, with reputedly very "different" legal systems (civil law, common law), have adopted Directive 85/374/EEC and Directive 92/59/EEC into national legislation and have done so with substantially the same effect.

Italy implemented Directive 85/374/EEC into national legislation by Law No. 224 of May 24, 1988 and Directive 92/59/EEC by Law No. 115 of March 17, 1995. Law No. 224/1988, pursuant to Directive 85/374/EEC, incorporates the following general principles. The manufacturer (producer), vendor and importer may be liable and may be treated in the same way because they have marketed (or imported) defective products or have supplied such products under circumstances where the manufacturer or importer cannot be identified. The liability is not only broad but is strict. The plaintiff does not need to prove that the defendant was negligent but the amount of damages may be reduced if the plaintiff's own acts or omissions contributed to the injury. The development risks defence is available. There have been few Italian reported court cases on these issues but the German, Dutch and UK ones cited above may be good guidelines for Italian jurisprudence, which is likely to be consistent with those decisions and consistent with Italian cases based upon the more general provisions of the Italian Civil Code (Articles 2043-2059, regarding compensation for torts) and Article 41 of the Italian Constitution (private economic activity must not endanger human safety).

If the product was shown to have been dangerous and have caused injury to the plaintiff, the defendant has the burden of proving a valid defence to liability.

A leading Italian case (pre-dating Directive 85/374/EEC by 20 years) is a decision of the Italian Supreme Court on 25 May 1964 (contaminated food). Corte di Cassazione, No. 1270, Foro it., 1965, 2098. Wrongdoing by the manufacturer was legally presumed but under the facts (the food was purchased in unopened manufacturer's packaging) the claim against the

retailer was unsuccessful. .

Other Italian court decisions have been grounded on the principle of the liability of the producer without negligence, called "responsabilita oggettiva" (strict liability, "objective responsibility"), pursuant to Articles 2049, 2050 or 2051 of the Italian Civil Code, in other words, the "objective standard" of Directive 85/374/EEC itself.

There are also decided Italian cases under the Directive. Thus, in 1998, the Court of Rome affirmed that pursuant to Italian Law No. 224/1988 (= Directive 85/374/EEC), the manufacturer of a bottle of pressurised water, which exploded and injured a consumer, was liable for damages, without requiring any proof that the defendant had been negligent. The Court affirmed such liability on the basis of the objective evidence that injury had been caused by the explosion of the bottle. Tribunale di Roma, decided 17 March 1998, Foro it., 1998, I, 3560. In 1995, however, the Italian Supreme Court had exculpated a manufacturer from damages which were suffered by a child using a product in an unusual and unexpected way. Corte di Cassazione, No. 10274 (decided 29 September 1995), Danno e Responsabilita, 1996, 87.

Plaintiff must prove damages pursuant to the normal rules of Italian law which allows recovery of financial compensation (expenses, lost earnings) and injury to health.

In the UK, Directive 85/374/EEC is the "Consumer Protection Act 1987" and Directive 92/59/EEC is the "General Product Safety Regulations 1994".

These UK laws are fully consistent with the EU norms and reach the same results as those mentioned above, although some of the procedures and terminology may be different. For example, as in Italy, the UK legislation has provisions about the ostensible or effective supplier of goods and describes in considerable detail the types of circumstances and persons and products intended to be covered by the legislation.

The defences available to the defendant are substantially similar to those available under Italian local law and, with respect to the development risks defence, as in Italy, the defence is available to a defendant which can prove that the objective state of the scientific and technical knowledge at the time when the product was marketed was not such as to allow discovery of the defect. Section 4(1) of the Consumer Protection Act 1987 places the burden of proof on the manufacturer (producer), which is the same situation as in Italy, and thus, although the approach and terminology are slightly different, the effect is the same. Please see, further, EC v. United Kingdom (Case 300/95, decided 29 May 1997) [1997] ECR 2649 (defence regarding liability for defective products, state of scientific and technical knowledge).

Interesting Europe-facts: + Some EU action programs and acronyms:

DECT ("Digital European Cordless Telecommunications")

ESPRIT (information technology research)

EUREKA (non-military technological research)

EURYDICE (information technology and education)

EUTELSAT ("European Telecommunications Satellite Organisation")

HORIZON (access to employment by disabled workers)

ISIS (standardisation in information technology)

JOULE ("Joint Opportunities for Unconventional or Long-Term

Energy Supply")

SPRINT ("Strategic Programme for Innovation & Technology Transfer")

+ The European Space Agency (ESA) is headquartered in Paris. The European Court of Auditors is headquartered in Luxembourg. The Danube Commission is headquartered in Budapest. The European Community Plant Variety Office (CPVO) is located in Angers, France.

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