Rethinking Product Liability: A Missing Element in the European Commission's Third Review of the European Product Liability Directive
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00672.x |
| Published date | 01 November 2007 |
| Author | Geraint Howells,Duncan Fairgrieve |
| Date | 01 November 2007 |
LEGISLATION AND REPORTS
Rethinking Product Liability: A Missing Element in the
European Commission’s Third Review of the European
Product Liability Directive
Duncan Fairgrieve
n
and Geraint Howells
nn
The paper uses the opportunity a¡orded by the European Commission’s Third Report of the
Product Liability Directive to assess the present state of product liability in Europe. It notes that
despite the maximal harmonisation character of the Directive there is a risk of divergence
between Member States on key issues including the core concept of defectiveness.The Commis -
sion seems at times confused (for example, as regards the relationship between defect and fault
liability) and more often complacent aboutthe risks of divergence; but this sits uneasily with the
espousal of maximal harmonisation. Ultimatelythere may be a need for a rethinking of product
liability to ensure greater clarity as regards the underlying rationale supporting strict liability.
This seems unlikely to materialise in the near future and so at the very least the Commission
should act to clarify some coreco nceptsthat are proving di⁄cult to interpret for the courts.
INTRODUCTION
Liability for loss caused by defective products in Europe, for a long time the
unique preserve of national lawsof tort and contract, was subject toa strongdose
of Europeanisation by means of the adoption of the European Directive on Pro-
duct Liability in 1985.
1
The Directive brought with it a series of new concepts as
well as a shift in underlying philosophy towards, as laid down in the Recitals, an
approach which requires ‘a fair apportionment of the risks inherent in modern
technological production.’
2
In the context of a relatively low uptake of the Directive, with few reported
cases under the implemented provisions,
3
there has been much debate both
within academia and beyond about the relative merits of the Directive, its opera-
tion, and potential reform.
4
Marking the twentieth anniversary of this ambitious
n
British Institute of International and Comparative Law. The author would like to acknowledge the
supportof the Product LiabilityForum at the British Institutei nu ndertaking this research (www.biicl.
org/plf). All the views expressed here are,of course, personal.
nn
Professor of Law, Lancaster Law Schoola nd barrister,Gough Square Chambers.
1 Council Directive 85/374/EEC of 25 July 1985 on the approximationof the laws, regulations and
administrative provisions of the Member States concerning liability for defective products OJ
1985 L 210/29.
2ibid, Recital 2.
3 With the exception perhaps of Austriawhere the pre-existing provisions were substantially less
attractivefor claimants.
4 For a detailed and elegant appraisal of the product liability regime, see S.Whittaker, Liability for
Products: English Law, French Law and European Harmonization (Oxford: Oxford University Press,
2005).
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(6) 9 62^978
attempt at harmonisationwithin the heart of thelaw of obligations, theEuropean
Commission has recently published its o⁄cial review of the operation of
Directive, which raises some important issues both about the detail of this area
of the law, but also the broader harmonisation project itself.
5
BACKGROUNDTO THE REVIEW
The Commission’s latest review is the third of a series of reports produced in line
with Article21 of the Directive,which lays downthat the Commission must pre-
pare a report to the Council on the application of the Directive on a ¢ve-yearly
basis. Inthe early 1990s, an o⁄cialstudy was commissioned into the impactof the
Directive,
6
and was closely followed by the publication of the European Com-
mission’s ten-year review of the Directive.
7
In this short review, the Commission
indicatedthat it wouldmonitor and evaluate the e¡ect of theexemption in favour
of primary agricultural produce and game, and this subsequently resulted in an
amendment of the Directive.
8
The Commission’s subsequent Green Paper on Lia-
bility for Defective Products i n 1999
9
examined a further range of issues, including
the burden of proof, development risks, ¢nancial limits, ten-year long-stop, sup-
plier’s liability, typeof goods covered, type of damagecovered and access to justice.
Responses to the Green Paper were however considered to be inconclusive,a ndthe
Commission consequently considered in its Second Report on the Directive in
2000,
10
that further investigatory work was required. Two expert groups were
formed
11
and two further studies commissioned in order to obtain more data about
the practical impact of the Directive across the EU. This renewed research e¡ort
resulted in the Lovells report onthe application of the Directive of 2003
12
and the
Fondazione Rosselli report of 2004 on the development risks defence.
13
The Lovells study sought to analyse how the Directive was being applied in
practice and examine its impact on consumer protection across the EU. The
report concluded that there was some experience of the Directive in almost all
Member States (perhaps unsurprising 20 years after its inception), but that the
Directive had only moderately increased the prospects of product liability claims
5 European Commission,Third reporton the applicationof CouncilDirectiveon the approximation of laws,
regulations and administrative provisions of the Member States concerning liability for defective products,
COM(2006) 496 ¢nal.
6 McKenna & Co, Reportfor the Commissionof the European Communities on the Application of Directive
1985/374/EEC on Liab ilityfor Defec tiveProduct s (1994).
7FirstCommissionReport of13 December1995 on the Application of the CouncilDirectiveon the Approxima-
tion of the Laws, Regulations and Administrative Provisions of the Member States Concerning Liability for
Defective Products, COM(95) 617¢nal (hereafter First Commission Report).
8 See Directive 1999/34 of the European Parliamentand of the Council of 10 May1999 amending
Council Directive 85/374/EEC on the approximation of the laws,regulations and administrative
provisions of the member states concerningl iability for defective products, OJ 1999 L 141/20.
9 European Commission, Liability for defective products COM (99) 396.
10 COM (2000) 893¢nal.
11 One comprisedof experts designatedby national authorities, the otherby stakeholders.
12 L ovell s, ProductLi ability in the European Union (2003)(Howells was a consultant to that study).
13 Fondazione Rosselli, Analysis of the Economic Impact of the Development Risk Clause as provided by
Directive 85/374/E ECon L iabilityfor Defective products (2 004).
Duncan Fairgrieve and Geraint Howells
963
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(6) 962^978
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