7. 5. 79 Official Journal of the European Communities No C 114/15 
Reasons 
The multinationals problem is not peculiar to the Lome Convention. Other bodies, such as the OECD 
and the UN, are discussing the problem. Moreover, to suggest, as point 3.2.6 does, that the 
multinationals should be 'monitored' under the Lome Convention, can only slow down the expansion 
of industrial cooperation, in which the multinationals, large and small, play a vital part. 
Voting 
For: 42; against: 49; abstentions: 6. 
Point 3.2.9 
Add a new point after point 3.2.9 to read as follows: 
'In view inter alia of the effects of inflation and the present international monetary disorder, Stabex 
should also be accompanied by indexation arrangements to guarantee the value of the funds 
allocated and ensure a stable price for the products'. 
Voting 
For: 22; against: 45; abstentions: 6. 
Point 3.5.2 
Delete the reference to apartheid in the Republic of South Africa as a criterion for granting aid to 
contracting parties to the Lome Convention. 
Reasons 
It is not the Committee's task to introduce purely political criteria into the application of the 
Convention. 
Voting 
For: 37; against: 54; abstentions: 9. 
Opinion on the proposal for a Council Directive relating to the approximation of the laws, 
regulations and administrative provisions of the Member States concerning liability for 
defective products 
The text referred to the Committee has been published in Official Journal of the European 
Communities No C 241 of 14 October 1976, page 9. 
A. LEGAL BASIS FOR THE OPINION 
On 5 October 1976 the Council referred the abovementioned proposal to the Economic and 
Social Committee in accordance with Article 100 of the Treaty establishing the European 
Economic Community. 
NoC 114/16 Official Journal of the European Communities 7. 5. 79 
B. OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE 
The Economic and Social Committee prepared its opinion on the above matter at its 161st 
plenary session held in Brussels on 12 and 13 July 1978. 
The full text of the opinion is as follows: 
THE ECONOMIC AND SOCIAL COMMITTEE. HAS ADOPTED THE FOLLOWING OPINION 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 100 
thereof, 
Having regard to the request made by the Council of 
the European Communities on 5 October 1976 for an 
opinion, 
Having regard to the decision taken by the Bureau on 
28 September 1976, instructing the Section for Industry, 
Commerce, Crafts and Services to prepare the 
Committee's work on the matter, 
Having regard to the opinion issued by the Section for 
Industry, Commerce, Crafts and Services at its meeting 
on 14 June 1978, 
Having regard to the report submitted by the 
rapporteur, Mr De Grave; 
Having regard to the discussion at its 161st plenary 
session held on 12 and 13 July 1978 (meeting of 13 
July), 
Whereas the Council has adopted a preliminary 
programme for a consumer protection and information 
policy H; 
Whereas in this programme, the Council asks the 
Commission to submit a proposal for a Directive 
approximating the laws of the Member States on 
product liability which takes account of the work of the 
Council of Europe; 
Whereas the Committee has approved the preliminary 
programme (2); 
Whereas the present proposal for a Directive rests on 
the same basic principles as the Council of Europe's 
draft Convention of 20 September 1976; 
Whereas the proposal for a Directive also seeks to bring 
about a partial alignment of national law where it 
engenders distortions of competition and impedes the 
free movement of goods, by 67 votes in favour, three against and 11 abstentions: 
1. General comments 
1.1. Introduction 
1.1.1. The Committee observes that the Commission 
intends to implement an important point in the 
preliminary programme for a consumer protection and 
information policy by proposing the present Directive, 
the aim of which is to align Member States' laws on 
liability for defective products. 
1.1.2. The Committee considers that any Directive on 
product liability ought to rest on the following 
principles: 
— enabling effective and more rapid remedies; 
— apportioning in an optimum manner, i.e. in the least 
costly but most equitable way, both the financial 
burden of the damage caused by defective products 
to their users and the expenses incurred in spreading 
the cost of such damages; 
— eliminating, or at least reducing, the number of 
defective products coming on to the market, without 
curbing the marketing of safe products; 
— not giving rise to or maintaining distortions of 
competition between firms; 
— following developments in the field of liability for 
defective products in both international law and 
national law (see the Section's report). 
1.1.3. The damage that an individual consumer suffers 
as the result of a defective product could have been 
sustained by any of the other consumers of the product 
in question. It may seem unfair that the unfortunate 
individual concerned should be made to sustain this 
damage alone, particularly if it has a serious social or 
economic impact. 
H OJ No C 92, 25. 4. 1975. 
(2) OJ No C 97, 16. 8. 1974. 1.1.3.1. The Committee considers that a system of 
liability irrespective of fault could provide a way of 
mitigating the damage suffered by victims of defective 
7. 5. 79 Official Journal of the European Communities No C 114/17 
products. This system is based on the principle of 
passing on, in the sale price of goods, the cost of 
compensation. This results in this cost being borne 
indirectly by all the consumers of a given product. 
1.1.3.2. The Committee recognizes that all the 
different ways of enabling costs to be borne indirectly 
by the consumer are only imperfect solutions. The 
representatives of insurance companies maintain that 
the insurance premiums make up only a very small part 
of the sale price of the product concerned. The 
Committee nevertheless considers that if the system of 
liability irrespective of fault were to become generalized 
the effects which this would have on production costs 
would have to be studied. 
1.1.3.3. In the light of the comments made above, the 
Committee holds the view that a Community Directive 
in this field may be based on a system of liability 
irrespective of fault. Views vary, however, with regard 
to a number of the important issues involved. 
1.2. Risks involved in scientific and technological 
development 
1.2.1. The Committee was unable to agree on whether 
or not development risks should be covered by the 
Directive. 
1.2.1.1. Some members consider that development 
risks should be excluded and consequently that the 
second paragraph of Article 1 of the draft Directive 
should be deleted. They hold the view that inclusion of 
development risks could have an inhibiting effect on 
innovation and consequently place the European sectors 
that engage in vigorous research and development at a 
disadvantage on the world market. The inclusion could 
inhibit innovation because the cost of insuring such 
unforeseeable risks is likely to be quite high, especially in 
view of the fact that the scope of the Commission's 
proposal, which adds a new dimension to the definition 
of defectiveness in Article 4, is far from clear. 
1.2.1.2. Other members, on the other hand, consider 
that appropriate consumer protection and the 
movement towards the system of liability irrespective of 
fault requires that these risks be covered by the 
Directive, particularly as insurance companies are in a 
position to cover them. 
1.3. Matters connected, directly or indirectly, with the 
subject-matter of the Directive 
1.3.1. By analogy with the practice in industrial 
accident insurance, a distinction may be drawn between injuries caused by a single occurrence and injuries which 
are sustained as a result of continuous, regular 
exposure, and which may not become apparent until 
after many years or even until the next generation. 
2. Specific comments 
2.1. Article 1 — The evidential burden 
2.1.1. Under the Directive the victim must prove 
damage, the defect and the causal connection. The 
Committee considers that, as in the past, national courts 
will have to be given a certain amount of discretion as 
to the presumptions which they admit as being really 
adequate. 
2.2. Article 1, first paragraph: Exclusion of defective 
services 
2.2.1. The Committee is gratified that the Commission 
is going to endeavour to draft a Directive on defective 
services. 
2.3. Article 4 — Definition of defectiveness 
2.3.1. The Commission's lack of agreement on 
development risks results in a lack of agreement on the 
definition of defectiveness in Article 4. 
2.3.2. Some members approve the wording proposed 
by the Commission, whilst others would like to see a 
more explicit and less ambiguous definition. 
2.4. Article 5 
2.4.1. Under the Directive, the manufacturer must 
prove that the article was not defective when put into 
circulation. The Committee considers that, as in the 
past, national courts will have to be given a certain 
amount of discretion as to the presumptions which they 
admit as being really adequate. 
2.5. New Article 5 (a) — Contributory negligence 
2.5.1. The Committee considers that the Directive 
should stipulate that the rules of national law should 
apply in the event of contributory negligence. 
No C 114/18 Official Journal of the European Communities 7. 5. 79 
2.6. New Article 5 (b) — Damage caused both by a 
defect in the product by the act or omission of a 
third party 
2.6.1. Where damage is caused both by a defect in the 
product and the act or omission of a third party, the 
producer's liability should remain intact since the 
producer has the right to sue the third party. A new 
Article should be included in the Directive and provide 
that the liability of a producer shall not be reduced 
when the damage is caused both by a defect in the 
product and by the act or omission of a third party 
except where the injured party is legally liable for the 
acts or omission of the third party, which is important 
from the point of view of concurrent fault. 
2.7. Article 6 — Definition of the notion of damage 
2.7.1. The Committee notes that the Directive will not 
alter national law as regards the damage which is liable 
to be compensated. There is no question of harmonizing 
this area. At least for an initial period, some types of 
damage (e.g. damages awarded for pain and suffering) 
will be taken into account in different ways in the 
various Member States. 
2.7.2. The Committee was unable to reach a consensus 
on the proposed definition of the notion of damage. 
2.7.2.1. Some members consider that the 
Commission's proposed definition is too wide and 
would like property damage to be excluded. They hold 
that it would be preferable to have different rules for 
the different types of damage, the social pressure being 
different. They therefore ask the Commission to make 
appropriate adjustments in this sense both to the part 
relating to compensation and as regards the burden of 
proof and periods of limitation. 
2.7.2.2. Other members consider that the proposed 
definition is too restrictive and that all damage ought to 
be compensated. Failing this, the law governing other 
types of damage, such as pain and suffering, would be 
incapable of unharmonization. Furthermore, injured 
parties might have to bring actions under different 
heads of liability (liability irrespective of fault and fault 
liability) in order to obtain compensation in full-
2.7.2.3. The latter members pointed out, in connection 
with damage to property, that the preliminary 
programme for a consumer protection and information 
policy covered the protection of the economic interests 
of consumers and, as the Commission considered itself 
to be bound by the Council resolution, it thus wanted to 
include these aspects in the current Directive. 2.7.2.4. Also some members wanted non-processed 
agricultural products to be excluded. 
2.7.2.5. Other members wanted craft products to be 
excluded. 
2.8. Article 6 — Coverage of damage to the product 
itself 
2.8.1. The Commitee calls upon the Commission to 
lose no time in submitting a proposal for a Directive on 
guarantees and after-sales service. 
2.9. Article 6 (b) (ii) (Cover exclusively of property for 
private use) 
2.9.1. Subparagraph (b) (ii) needs to be made more 
specific. There exist premises which are used for private 
and business purposes and products for private use that 
are used occasionally in one's business or profession 
(e.g. private cars used for going to work or occasionally 
for business trips). 
2.9.2. Such products should also come under the 
Directive. This subparagraph should therefore be 
worded as follows: 
'(ii) was not acquired or used by the claimant 
exclusively for the purposes of his trade, 
business or profession'. 
2.9.3. Restricting damage to, and destruction of, 
property to types of property ordinarily acquired for 
private use or consumption, and not acquired for the 
purpose of a trade or profession, might also cause 
difficulties. 
2.10. Article 7 (Limitation of damages: principle, level, 
problems of apportionment) 
2.10.1. The Committee was unable to agree on the 
question of limitation of damages (principle, level, 
problems of apportionment). 
2.10.1.1. Some members approve the Commission's 
proposal that the overall amount of damages which a 
producer is liable to pay should be limited. They feel 
that the extension of the producer's liability ought to be 
offset by limiting its amount, and indeed think there 
should be a further limit of 200 000 EUA on the 
amount of damages payable for individual cases of 
death or personal injury. They consider also that an 
overall limit set at the figure proposed in the draft 
7. 5. 79 Official Journal of the European Communities No C 114/19 
Directive would allow adequate compensation of 
victims in normal cases. 
2.10.1.2. Other members feel that limitation of the 
amount of the producer's liability would leave the 
victims of major disasters like the thalidomide tragedy 
uncovered, because the proposed amount would be too 
small to provide full compensation. In such cases a 
problem would also arise as to how to share out the 
damages available equitably between the victims. The 
Commission has not suggested how this problem can be 
overcome. 
2.10.2. In any event, the Committee considers that, if 
there is a limit, it should be specified that, where several 
persons are liable, they should be liable up to a 
maximum of the limit set, each paying his share. 
2.11. Article 8 (limitation period) 
2.11.1. The Committee agrees with the principle laid 
down in Article 8, first paragraph, which will make for 
a better administration of justice and the avoidance of 
abuses without sacrificing the interests of the consumer, 
since the limitation period will not start to run until the 
three conditions are met (awareness of the damage, of 
the defect, and of the producer's identity). 
2.11.2. As far as the second paragraph of Article 8 is 
concerned, it must be remembered that the Community, 
like its Member States, will tend increasingly towards 
use of extra-judicial procedures and that injured parties 
will first try to come to an amicable settlement of 
damages with the producer. If he let the matter remain 
unsettled, the consumer could soon find his claim 
time-barred, and become the victim of his own patience 
and good will, and the promises or delaying tactics of 
Done at Brussels, 13 July 1978. the vendor or any extra-judicial procedures which had 
been set in motion. The Commission should take a look 
at national rules causing limitation periods to cease to 
run and should provide in its Directive that time shall 
cease to run when the consumer presses his claim 
outside the courts in a manner to be determined. 
2.12. Article 9 (period of liability) 
2.12.1. The Commission considers that the mandatory 
period proposed is an 'appropriate average'. This means 
that it is not the maximum period which could be 
envisaged nor a period selected in the light of objective 
criteria. In any case, the Committee finds this period 
acceptable, subject to the clarification of its starting 
point. This starting time will have to be determined in 
such a way as to prevent doubt or disputes, as far as is 
possible. 
2.13. Article 14 
2.13.1. If the Commission is to be informed about all 
changes resulting from the alignment of the Member 
States' product liability law, it is not enough for the 
Member States to communicate to it only the main 
provisions of their domestic law. No, all provisions of 
this order should be brought to the Commission's 
notice. The Committee therefore proposes the following 
rendering: 
'The Member States shall notify the Commission 
immediately of all laws, regulations and 
administrative provisions which are adopted or 
proposed in application of or within the framework 
of the present Directive. The Commission shall 
inform the other Member States.' 
The Chairman 
of the Economic and Social Committee 
Basil de FERRANTI