Council Resolution

of 19 December 2002

on amendment of the liability for defective products Directive

(2003/C 26/02)

THE COUNCIL OF THE EUROPEAN UNION,

RECALLING THAT:

1. Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products(1), as amended by European Parliament and Council Directive 1999/34/EC of 10 May 1999(2), seeks to achieve an approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products because the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property. To provide an adequate solution to the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production, the Directive imposes liability on the producer without fault on his part for damage caused by the defectiveness of his products.

2. The producer is considered to be the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product, presents himself as the producer, cf. Article 3(1) of the Directive. Without prejudice to the liability of the producer, any person who imports into the Community a product for sale, hire, leasing or any form of distribution in the course of his business shall be deemed to be a producer and shall be responsible as a producer, cf. Article 3(2) of the Directive.

3. Where the producer or the importer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or the importer or of the person who supplied him with the product, cf. Article 3(3) of the Directive. Apart from this specific Article the Directive contains no provisions concerning the liability of the supplier.

4. At the time of the adoption of the Directive (Session 1025 of the Council, 25 July 1985), the following joint statement of the Council and the Commission concerning the scope of the Directive was inserted in the Council minutes: "With regard to the interpretation of Articles 3 and 12, the Council and the Commission are in agreement that there is nothing to prevent individual Member States from laying down in their national legislation rules regarding liability for intermediaries, since intermediary liability is not covered by the Directive. There is further agreement that under the Directive the Member States may determine rules on the final mutual apportionment of liability among several liable producers (see Article 3) and intermediaries."

At the same time the following statement was inserted in the Council minutes concerning the understanding of Article 3(3): "The Council notes that the word 'supplier' within the meaning of Article 3(3) means the person who operates in the chain of distribution.".

5. In a judgment of 25 April 2002 (case C-52/00) the Court of Justice of the European Communities established that the Directive seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States (see also judgments of the same date in cases C-154/00 and C-183/00). Furthermore, the Court of Justice also established in case C-52/00 that a national legislation providing that the supplier of a defective product is to be liable in all cases and on the same basis as the producer constitutes a violation of the Directive.

6. Thus, it seems that Member States may no longer lay down rules on liability of suppliers, i.e. persons who operate in the chain of distribution, based on the same ground as the liability system in the Directive concerning liability of producers. Except for cases provided for in Article 3(3) a system of liability of suppliers based on strict liability therefore seems to be precluded.

7. This legal situation gives rise to concern, since as pointed out in paragraph 3 the Directive does not, apart from Article 3(3), contain provisions concerning the liability of the supplier.

8. The possibility to lay down rules on liability of suppliers, including rules on strict liability, could involve benefits to the consumers, regardless of whether these rules are laid down at national or Community level. In relevant cases the consumer would then be able to raise his claim against the producer, subsequent suppliers, including the seller of the product, or them all. This could improve consumer's possibility of actually obtaining compensation.

The Council also recalls that one of the general objectives of the Community is to promote consumer interests and ensure a high level of consumer protection, cf. Articles 95 and 153 of the Treaty.

9. THE COUNCIL CONSIDERS that against this background there is a need to assess whether Directive 85/374/EEC, as amended by Directive 1999/34/EC, should be modified in such a way as to allow for national rules on liability of suppliers based on the same ground as the liability system in the Directive concerning liability of producers.

(1) OJ L 210, 7.8.1985, p. 29.

(2) OJ L 141, 4.6.1999, p. 20.