COMMON POSITION (EC) No 3/1999 adopted by the Council on 17 December 1998 with a view to the adoption of Directive 1999/. . ./EC of the European Parliament and of the Council of . . . amending Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (1999/C 49/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

(1) Whereas product safety and compensation for damage caused by defective products are social imperatives which must be met within the internal market; whereas the Community has responded to those requirements by means of Directive 85/374/EEC (4) and Council Directive 92/59/EEC of 29 June 1992 on general product safety (5);

(2) Whereas Directive 85/374/EEC established a fair apportionment of the risks inherent in a modern society in which there is a high degree of technicality; whereas that Directive therefore struck a reasonable balance between the interests involved, in particular the protection of consumer health, encouraging innovation and scientific and technological development, guaranteeing undistorted competition and facilitating trade under a harmonised system of civil liability; whereas that Directive has thus helped to raise awareness among traders of the issue of product safety and the importance accorded to it;

(3) Whereas the degree of harmonisation of Member States' law achieved by Directive 85/374/EEC is not complete in view of the derogations provided for, in particular with regard to its scope, from which unprocessed agricultural products are excluded;

(4) Whereas the Commission monitors the implementation and effects of Directive 85/374/EEC and in particular its aspects relating to consumer protection and the functioning of the internal market, which have already been the subject of a first report; whereas, in this context, the Commission is required by Article 21 of that Directive to submit a second report on its application;

(5) Whereas including primary agricultural products within the scope of Directive 85/374/EEC would help restore consumer confidence in the safety of agricultural products; whereas such a measure would meet the requirements of a high level of consumer protection;

(6) Whereas circumstances call for Directive 85/374/EEC to be amended in order to facilitate, for the benefit of consumers, legitimate compensation for damage to health caused by defective agricultural products;

(7) Whereas this Directive has an impact on the functioning of the internal market in so far as trade in agricultural products will no longer be affected by differences between rules on producer liability;

(8) Whereas the principle of liability without fault laid down in Directive 85/374/EEC must be extended to all types of product, including agricultural products as defined by the second sentence of Article 38(1) of the Treaty and those listed in Annex II to the said Treaty;

(9) Whereas, in accordance with the principle of proportionality, it is necessary and appropriate in order to achieve the fundamental objectives of increased protection for all consumers and the proper functioning of the internal market to include agricultural products within the scope of Directive 85/374/EEC; whereas this Directive is limited to what is necessary to achieve the objectives pursued in accordance with the third paragraph of Article 3b of the Treaty,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 85/374/EEC is hereby amended as follows:

1. Article 2 shall be replaced by the following:

'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.`

2.In Article 15, paragraph 1(a) shall be deleted.

Article 2

1. Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof.

They shall apply these measures as from (. . .) (6*).

When the Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the text of the provisions of national law which they subsequently adopt in the field governed by this Directive.

Article 3

This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ C 337, 7.11.1997, p. 54.

(2) OJ C 95, 30.3.1998, p. 69.

(3) Opinion of the European Parliament of 5 November 1998 (OJ C 359, 23.11.1998), Council common position of 17 December 1998, and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ L 210, 7.8.1985, p. 29. Directive as amended by the 1994 Act of Accession.

(5) OJ L 228, 11.8.1992, p. 24.

(6*) 18 months after the entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 2 October 1997 the Commission submitted to the Council a proposal for a Directive, based on Article 100a of the EC Treaty, amending 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.

2. The Economic and Social Committee delivered its opinion on 29 January 1998.

The European Parliament delivered its opinion on 5 November 1998.

3. The Council adopted its common position, in accordance with Article 198b of the Treaty, on 17 December 1998.

II. OBJECTIVES

The aim of the proposal is to extend the producer's liability without fault for defective products to cover primary agricultural products and game, which were not covered by the provisions of Directive 85/374/EEC.

Following the proceedings of the Temporary Committee of Inquiry into BSE, the European Parliament recommended that Directive 85/374/EEC be amended by September 1997 at the latest, in order to cover primary agricultural products as well.

The proposal seeks to achieve the two-fold objective of increasing consumer protection, as mentioned in the Luxembourg European Council's declaration on food safety, and of strengthening the internal market by removing distortions of competition, by maintaining the balance between consumers' and producers' interests and by increasing legal certainty.

III. ANALYSIS OF THE COMMON POSITION

The European Parliament proposed eight amendments. These were not adopted by the Commission given that Directive 85/374/EEC was due for a detailed review in the context of the next report which the Commission was required to submit to the European Parliament and the Council in the year 2000.

The Council did not consider it necessary to adopt the amendments suggested by the European Parliament and approved the Commission proposal without amendment.