1985L0374 — EN — 04.06.1999 — 001.001 — 1
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►B COUNCIL DIRECTIVE
of 25July 1985
on the approximation of the laws, regulations and administrative provisions of the Member States
concerning liability for defective products
(85/374/EEC)
(OJ L 210, 7.8.1985, p. 29)
Amended by:
Official Journal
No page date
►M1Directive 1999/34/EC of the European Parliament and of the Council of
10 May 1999 L 141 20 4.6.1999
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COUNCIL DIRECTIVE
of 25July 1985
on the approximation of the laws, regulations and administrative
provisions of the Member States concerning liability for defective
products
(85/374/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas approximation of the laws of the Member States concerning
the liability of the producer for damage caused by the defectiveness ofhis products is necessary because the existing divergences may distortcompetition and affect the movement of goods within the commonmarket and entail a differing degree of protection of the consumeragainst damage caused by a defective product to his health or property;
Whereas liability without fault on the part of the producer is the sole
means of adequately solving the problem, peculiar to our age ofincreasing technicality, of a fair apportionment of the risks inherent inmodern technological production;
Whereas libility without fault should apply only to movables which
have been industrially produced; whereas, as a result, it is appropriate toexclude liability for agricultural products and game, except where theyhave undergone a processing of an industrial nature which could cause adefect in these products; whereas the liability provided for in thisDirective should also apply to movables which are used in the construc-tion of immovables or are installed in immovables;
Whereas protection of the consumer requires that all producers involved
in the production process should be made liable, in so far as theirfinished product, component part or any raw material supplied by themwas defective; whereas, for the same reason, liability should extend toimporters of products into the Community and to persons who presentthemselves as producers by affixing their name, trade mark or otherdistinguishing feature or who supply a product the producer of whichcannot be identified;
Whereas, in situations where several persons are liable for the same
damage, the protection of the consumer requires that the injured personshould be able to claim full compensation for the damage from any oneof them;
Whereas, to protect the physical well-being and property of the
consumer, the defectiveness of the product should be determined byreference not to its fitness for use but to the lack of the safety which thepublic at large is entitled to expect; whereas the safety is assessed byexcluding any misuse of the product not reasonable under the circum-stances;
Whereas a fair apportionment of risk between the injured person and the
producer implies that the producer should be able to free himself fromliability if he furnishes proof as to the existence of certain exoneratingcircumstances;
(1) OJ No C 241, 14. 10. 1976, p. 9 and OJ No C 271, 26. 10. 1979, p. 3.
(2) OJ No C 127, 21. 5. 1979, p. 61.
(3) OJ No C 114, 7. 5. 1979, p. 15.
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Whereas the protection of the consumer requires that the liability of the
producer remains unaffacted by acts or omissions of other personshaving contributed to cause the damage; whereas, however, the contri-butory negligence of the injured person may be taken into account toreduce or disallow such liability;
Whereas the protection of the consumer requires compensation for
death and personal injury as well as compensation for damage toproperty; whereas the latter should nevertheless be limited to goods forprivate use or consumption and be subject to a deduction of a lowerthreshold of a fixed amount in order to avoid litigation in an excessivenumber of cases; whereas this Directive should not prejudice compensa-tion for pain and suffering and other non-material damages payable,where appropriate, under the law applicable to the case;
Whereas a uniform period of limitation for the bringing of action for
compensation is in the interests both of the injured person and of theproducer;
Whereas products age in the course of time, higher safety standards are
developed and the state of science and technology progresses; whereas,therefore, it would not be reasonable to make the producer liable for anunlimited period for the defectiveness of his product; whereas, there-fore, liability should expire after a reasonable length of time, withoutprejudice to claims pending at law;
Whereas, to achieve effective protection of consumers, no contractual
derogation should be permitted as regards the liability of the producer inrelation to the injured person;
Whereas under the legal systems of the Member States an injured party
may have a claim for damages based on grounds of contractual liabilityor on grounds of non-contractual liability other than that provided for inthis Directive; in so far as these provisions also serve to attain theobjective of effective protection of consumers, they should remainunaffected by this Directive; whereas, in so far as effective protection ofconsumers in the sector of pharmaceutical products is already alsoattained in a Member State under a special liability system, claimsbased on this system should similarly remain possible;
Whereas, to the extent that liability for nuclear injury or damage is
already covered in all Member States by adequate special rules, it hasbeen possible to exclude damage of this type from the scope of thisDirective;
Whereas, since the exclusion of primary agricultural products and game
from the scope of this Directive may be felt, in certain Member States,in view of what is expected for the protection of consumers, to restrictunduly such protection, it should be possible for aMember Sta te toextend liability to such products;
Whereas, for similar reasons, the possibility offered to a producer to
free himself from liability if he proves that the state of scientific andtechnical knowledge at the time when he put the product into circulationwas not such as to enable the existence of a defect to be discovered maybe felt in certain Member States to restrict unduly the protection of theconsumer; whereas it should therefore be possible for a Member Stateto maintain in its legislation or to provide by new legislation that thisexonerating circumstance is not admitted; whereas, in the case of newlegislation, making use of this derogation should, however, be subject toa Community stand-still procedure, in order to raise, if possible, thelevel of protection in auniform ma nner throughout the Community;
Whereas, taking into account the legal traditions in most of the Member
States, it is inappropriate to set any financial ceiling on the producer’sliability without fault; whereas, in so far as there are, however, differingtraditions, it seems possible to admit that a Member State may derogatefrom the principle of unlimited liability by providing a limit for the totalliability of the producer for damage resulting from a death or personalinjury and caused by identical items with the same defect, provided thatthis limit is established at a level sufficiently high to guarantee adequate
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protection of the consumer and the correct functioning of the common
market;
Whereas the harmonization resulting from this cannot be total at the
present stage, but opens the way towards greater harmonization;whereas it is therefore necessary that the Council receive at regularintervals, reports from the Commission on the application of thisDirective, accompanied, as the case may be, by appropriate proposals;
Whereas it is particularly important in this respect that a re-examination
be carried out of those parts of the Directive relating to the derogationsopen to the Member States, at the expiry of a period of sufficient lengthto gather practical experience on the effects of these derogations on theprotection of consumers and on the functioning of the common market,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The producer shall be liable for damage caused by a defect in his
product.
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Article 2
For the purpose of this Directive, ‘product'means all movables even if
incorporated into another movable or into an immovable. ‘Product'includes electricity.
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Article 3
1. ‘Producer' means the manufacturer of a finished product, the
producer of any raw material or the manufacturer of a component partand any person who, by putting his name, trade mark or other distin-guishing feature on the product presents himself as its producer.
2. Without prejudice to the liability of the producer, any person who
imports into the Community a product for sale, hire, leasing or any formof distribution in the course of his business shall be deemed to be aproducer within the meaning of this Directive and shall be responsibleas a producer.
3. Where the producer of the product cannot be identified, each
supplier of the product shall be treated as its producer unless he informsthe injured person, within a reasonable time, of the identity of theproducer or of the person who supplied him with the product. The sameshall apply, in the case of an imported product, if this product does notindicate the identity of the importer referred to in paragraph 2, even ifthe name of the producer is indicated.
Article 4
The injured person shall be required to prove the damage, the defect and
the causal relationship between defect and damage.
Article 5
Where, as a result of the provisions of this Directive, two or more
persons are liable for the same damage, they shall be liable jointly andseverally, without prejudice to the provisions of national law concerningthe rights of contribution or recourse.
Article 6
1. A product is defective when it does not provide the safety which a
person is entitled to expect, taking all circumstances into account,including:
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(a) the presentation of the product;
(b) the use to which it could reasonably be expected that the product
would be put;
(c) the time when the product was put into circulation.
2. A product shall not be considered defective for the sole reason that
abetter product is subsequently put into circula tion.
Article 7
The producer shall not be liable as a result of this Directive if he
proves:
(a) that he did not put the product into circulation; or
(b) that, having regard to the circumstances, it is probable that the
defect which caused the damage did not exist at the time when theproduct was put into circulation by him or that this defect came intobeing afterwards; or
(c) that the product was neither manufactured by him for sale or any
form of distribution for economic purpose nor manufactured ordistributed by him in the course of his business; or
(d) that the defect is due to compliance of the product with mandatory
regulations issued by the public authorities; or
(e) that the state of scientific and technical knowledge at the time when
he put the product into circulation was not such as to enable theexistence of the defect to be discovered; or
(f) in the case of a manufacturer of a component, that the defect is
attributable to the design of the product in which the component hasbeen fitted or to the instructions given by the manufacturer of theproduct.
Article 8
1. Without prejudice to the provisions of national law concerning the
right of contribution or recourse, the liability of the producer shall notbe reduced when the damage is caused both by a defect in product andby the act or omission of a third party.
2. The liability of the producer may be reduced or disallowed when,
having regard to all the circumstances, the damage is caused both by adefect in the product and by the fault of the injured person or anyperson for whom the injured person is responsible.
Article 9
For the purpose of Article 1, ‘damage' means:
(a) damage caused by death or by personal injuries;
(b) damage to, or destruction of, any item of property other than the
defective product itself, with alower threshold of 500 ECU,provided that the item of property:
(i) is of a type ordinarily intended for private use or consumption,
and
(ii) was used by the injured person mainly for his own private use
or consumption.
This Article shall be without prejudice to national provisions relating to
non-material damage.
Article 10
1. Member States shall provide in their legislation that a limitation
period of three years shall apply to proceedings for the recovery ofdamages as provided for in this Directive. The limitation period shallbegin to run from the day on which the plaintiff became aware, orshould reasonably have become aware, of the damage, the defect andthe identity of the producer.
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2. The laws of Member States regulating suspension or interruption
of the limitation period shall not be affected by this Directive.
Article 11
Member States shall provide in their legislation that the rights conferred
upon the injured person pursuant to this Directive shall be extinguishedupon the expiry of a period of 10 years from the date on which theproducer put into circulation the actual product which caused thedamage, unless the injured person has in the meantime institutedproceedings against the producer.
Article 12
The liability of the producer arising from this Directive may not, in
relation to the injured person, be limited or excluded by a provisionlimiting his liability or exempting him from liability.
Article 13
This Directive shall not affect any rights which an injured person may
have according to the rules of the law of contractual or non-contractualliability or a special liability system existing at the moment when thisDirective is notified.
Article 14
This Directive shall not apply to injury or damage arising from nuclear
accidents and covered by international conventions ratified by theMember States.
Article 15
1. Each Member State may:
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(b) by way of derogation from Article 7 (e), maintain or, subject to the
procedure set out in paragraph 2 of this Article, provide in thislegislation that the producer shall be liable even if he proves thatthe state of scientific and technical knowledge at the time when heput the product into circulation was not such as to enable theexistence of adefect to be discovered.
2. A Member State wishing to introduce the measure specified in
paragraph 1 (b) shall communicate the text of the proposed measure tothe Commission. The Commission shall inform the other Member Statesthereof.
The Member State concerned shall hold the proposed measure in abey-
ance for nine months after the Commission is informed and providedthat in the meantime the Commission has not submitted to the Council aproposal amending this Directive on the relevant matter. However, ifwithin three months of receiving the said information, the Commissiondoes not advise the Member State concerned that it intends submittingsuch a proposal to the Council, the Member State may take theproposed measure immediately.
If the Commission does submit to the Council such aproposa l
amending this Directive within the aforementioned nine months, theMember State concerned shall hold the proposed measure in abeyancefor a further period of 18 months from the date on which the proposal issubmitted.
3. Ten years after the date of notification of this Directive, the
Commission shall submit to the Council a report on the effect thatrulings by the courts as to the application of Article 7 (e) and ofparagraph 1 (b) of this Article have on consumer protection and thefunctioning of the common market. In the light of this report the
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Council, acting on a proposal from the Commission and pursuant to the
terms of Article 100 of the Treaty, shall decide whether to repeal Article7 (e).
Article 16
1. Any Member State may provide that a producer’s total liability for
damage resulting from a death or personal injury and caused by iden-tical items with the same defect shall be limited to an amount whichmay not be less than 70 million ECU.
2. Ten years after the date of notification of this Directive, the
Commission shall submit to the Council a report on the effect onconsumer protection and the functioning of the common market of theimplementation of the financial limit on liability by those MemberStates which have used the option provided for in paragraph 1. In thelight of this report the Council, acting on a proposal from the Commis-sion and pursuant to the terms of Article 100 of the Treaty, shall decidewhether to repeal paragraph 1.
Article 17
This Directive shall not apply to products put into circulation before the
date on which the provisions referred to in Article 19 enter into force.
Article 18
1. For the purposes of this Directive, the ECU shall be that defined
by Regulation (EEC) No 3180/78 (
1), as amended by Regulation (EEC)
No 2626/84 (2). The equivalent in national currency shall initially be
calculated at the rate obtaining on the date of adoption of this Directive.
2. Every five years the Council, acting on a proposal from the
Commission, shall examine and, if need be, revise the amounts in thisDirective, in the light of economic and monetary trends in theCommunity.
Article 19
1. Member States shall bring into force, not later than three years
from the date of notification of this Directive, the laws, regulations andadministrative provisions necessary to comply with this Directive. Theyshall forthwith inform the Commission thereof (
3).
2. The procedure set out in Article 15 (2) shall apply from the date of
notification of this Directive.
Article 20
Member States shall communicate to the Commission the texts of the
main provisions of national law which they subsequently adopt in thefield governed by this Directive.
Article 21
Every five years the Commission shall present a report to the Council
on the application of this Directive and, if necessary, shall submitappropriate proposals to it.
Article 22
This Directive is addressed to the Member States.
(1) OJ No L 379, 30. 12. 1978, p. 1.
(2) OJ No L 247, 16. 9. 1984, p. 1.
(3) This Directive was notified to the Member States on 30 July 1985.