No C 12/8 Official Journal of the European Communities 18. 1.91 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Directive on the liability of suppliers of services 
COM(90) 482 final — SYN 308 
(Submitted by the Commission on 9 November 1990) 
(91/C 12/11) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 100a 
thereof, 
Having regard to the proposal from the Commission, 
In cooperation with the European Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas the Council Resolution of 9 November 1989 
stressed the priority nature of the implementation at 
Community level of means of promoting the safety of 
services as part of the relaunching of the consumer 
protection policy; 
Whereas there is a Community dimension to the market 
in services; 
Whereas, although the laws of the Member States 
concerning the liability of the suppliers of services for the 
damage caused by their services all seek to provide 
greater protection for persons for whom the services are 
intended and for third parties, they continue to differ in 
content and as regards the degree of protection 
provided; whereas such differences may create barriers 
to trade and unequal conditions in the internal market in 
services; whereas they do not guarantee the same degree 
of protection for the injured person against all damage 
caused to the person, nor to the consumer against 
damage caused to movable or immovable property by a 
service; 
Whereas action at Community level is the most appro­
priate in view of these divergences and the Community 
dimension of services; 
Whereas the principle of reversing the burden of proof 
of a fault on the part of the supplier of the defective 
service is the most suitable in view of the level of 
protection afforded by national law in the Member 
States; whereas such a principle already exists in several national legislations, but should be formalized and 
applied in a standard manner; 
Whereas the characteristics of services, including their 
'one-off nature, which is sometimes intangible, the fact 
that the service 'disappears' at the moment that damage 
is caused, and the respective positions of the injured 
person with no specific technical knowledge and the 
trader who possesses such knowledge, justify a reversal 
of the burden of proof of the fault on the part of the 
supplier of the service in favour of the injured person; 
Whereas a fault on the part of the supplier of the service 
must be assessed in relation to the reasonable expectation 
that the service should not cause damage to the physical 
integrity of persons and of movable or immovable 
property, including the persons or property which were 
the object of the service; 
Whereas the mere fact that a better service existed or 
might have existed at the moment of performance or 
subsequently does not constitute a fault; 
Whereas, having regard to the diversity of services on 
the one hand and the existence of Council Directive 
85/374/EEC (*) concerning product liability on the 
other, a broad definition of service should be adopted 
based on the traditional distinction between service and 
the manufacture of goods, services and the transfer of 
rights in rem; whereas, on account of their special 
nature, public services intended to maintain public safety 
should be excluded from this Directive; whereas package 
travel services and waste services already governed by 
specific Community legislation should also be excluded; 
whereas the same applies for damage already covered by 
liability arrangements governed by international 
agreements ratified by the Member States or by the 
Community; 
Whereas the objective of protecting consumers and 
compensating persons injured by defective services does 
not justify a distinction between private and public 
suppliers of services; whereas, however, only services 
provided by commercial traders should be covered and 
not those rendered by one individual to another; 
(') OJ No L 210, 7. 8. 1985, p. 29. 
18. 1.91 Official Journal of the European Communities No C 12/9 
Whereas protection of the injured person requires 
compensation for the damage to the health or physical 
integrity of persons; whereas protection of the consumer 
requires compensation for the damage to the physical 
integrity of their movable or immovable property; 
whereas any material damage resulting therefrom should 
also be compensated for; 
Whereas it falls to the injured person to provide proof of 
the damage and of the causal relationship between that 
damage and the service supplied; 
Whereas the respective positions of the parties provide 
justification that there be no reduction in the supplier's 
liability where damage is caused jointly by the fault of 
the supplier and the intervention of a third party, but 
that such liability may be reduced (or even waived) in 
the event of a joint fault on the part of the injured 
person; 
Whereas the protection of the injured person implies that 
the supplier of the services should not be able to limit or 
exclude his liability in relation to the former; 
Whereas when liability for a given damage is shared by 
several persons, protection of the injured person requires 
that they have joint and several liability; 
Whereas the position of the consumer with regard to the 
franchisor giving his name to the services undertaking 
and the franchisee to whom he applies justifies joint and 
several liability of the franchisor, the franchisee and the 
master franchisee; 
Whereas this Directive is without prejudice to the 
application of Council Directive 89/391 /EEC of 12 June 
1989 on the introduction of measures to encourage 
improvements in the safety and health of workers at 
work (2) and the specific Directives deriving therefrom; 
Whereas the system of liability established by this 
Directive and the nature of the services justify reasonably 
short limitation periods for bringing proceedings for the 
recovery of damages and the termination of liability, 
except where services relating to the design and 
construction of immovable property are concerned, 
O OJ No L 183, 29. 6. 1989, p. 1. HAS ADOPTED THIS DIRECTIVE: 
Article 1 
Principle 
1. The supplier of a service shall be liable for damage 
to the health and physical integrity of persons or the 
physical integrity of movable or immovable property, 
including the persons or property which were the object 
of the service, caused by a fault committed by him in the 
performance of the service. 
2. The burden of proving the absence of fault shall 
fall upon the supplier of the service. 
3. In assessing the fault, account shall be taken of the 
behaviour of the supplier of the service, who, in normal 
and reasonably foreseeable conditions, shall ensure the 
safety which may reasonably be expected. 
4. Whereas the mere fact that a better service existed 
or might have existed at the moment of performance or 
subsequently shall not constitute a fault. 
Article 2 
Definition of service 
For the purpose of this Directive, 'service' means any 
transaction carried out on a commercial basis or by way 
of a public service and in an independent manner, 
whether or not in return for payment, which does not 
have as its direct and exclusive object the manufacture of 
movable property or the transfer of rights in rem or 
intellectual property rights. 
This Directive shall not apply to public services intended 
to maintain public safety. It shall not apply to package 
travel or to waste services. 
Nor shall it apply to damage covered by liability 
arrangements governed by international agreements 
ratified by the Member States or by the Community. 
Article 3 
Definition of supplier of services 
1. The term 'supplier of services' means any natural or 
legal person governed by private or public law who, in 
the course of his professional activities or by way of a 
public service, provides a service referred to in Article 2. 
2. Any person who provides a service by using the 
services of a representative or other legally independent 
intermediary shall continue to be deemed to be a supplier 
of services within the meaning of this Directive. 
NoC 12/10 Official Journal of the European Communities 18. 1.91 
3. If the supplier of the service referred to in 
paragraph 1 is not established within the Community, 
and without prejudice to his liability, the person carrying 
out the service in the Community shall be considered as 
the supplier of that service for the purpose of this 
Directive. 
Article 4 
Definition of damage 
The term 'damage' means: 
(a) death or any other direct damage to the health or 
physical integrity of persons; 
(b) any direct damage to the physical integrity of 
movable or immovable property, including animals, 
provided that this property: 
(i) is of a type normally intended for private use or 
consumption, and 
(ii) was intended for or used by the injured person, 
principally for his private use or consumption; 
(c) any financial material damage resulting directly from 
the damage referred to at (a) and (b). 
Article 5 
Proof 
The injured person shall be required to provide proof of 
the damage and the causal relationship between the 
performance of the service and the damage. 
Article 6 
Third parties and joint liability 
1. The liability of the supplier of the service shall not 
be reduced where the damage is caused jointly by a fault 
on his part and by the intervention of a third party. 
2. The liability of the supplier of the service may be 
reduced, or even waived, where the damage is caused 
jointly by a fault on his part and by the fault of the 
injured person, or a person for whom the injured person 
is responsible. 
Article 7 
Exclusion of liability 
The supplier of a service may not, in relation to the 
injured person, limit or exclude his liability under this 
Directive. Article 8 
Joint and several liability 
1. If, in applying this Directive, several people are 
liable for a given damage, they shall be jointly liable, 
without prejudice to the provisions of national law 
relating to the law of recourse of one supplier against 
another. 
2. The franchisor, the master franchisee and the fran­
chisee, within the meaning of Commission Regulation 
(EEC) No 4087/88 of 30 November 1988 on the 
application of Article 85 (3) of the Treaty to categories 
of franchise agreements (*) shall be deemed to be jointly 
and severally liable within the meaning of paragraph 1. 
However, the franchisor and the master franchisee may 
absolve themselves of liability if they can prove that the 
damage is due to a product which, on the basis of Regu­
lation (EEC) No 4087/88, they themselves had not been 
able to supply or impose. 
Article 9 
Extinction of rights 
The Member States shall provide in their legislation that 
the rights conferred upon the injured person pursuant to 
this Directive shall be extinguished upon the expiry of a 
period of five years from the date on which the supplier 
of services provided the service which caused the 
damage, unless in the meantime the injured person has 
instituted legal, administrative or arbitration proceedings 
against that person. 
However, this period shall be extended to 20 years 
where the service relates to the design or construction of 
immovable property. 
Article 10 
Limitation period 
1. Member States shall provide in their legislation that 
a limitation period of three years shall apply to 
proceedings for the recovery of damages as provided for 
in this Directive, beginning on the day on which the 
plaintiff became aware or should reasonably have 
become aware of the damage, the service and the 
identity of the supplier of the service. 
However, this period shall be extended to 10 years 
where the service relates to the design or construction of 
immovable property. 
2. The laws of Member States regulating suspension 
or interruption of the limitation period shall not be 
affected by this Directive. 
0) OJ No L 359, 28. 12. 1988, p. 46. 
18. 1. 91 Official Journal of the European Communities No C 12/11 
Article 11 
Transitional provision 
This Directive shall not apply to services provided before 
the date on which the provisions referred to in Article 
12 (1) enter into force. 
Article 12 
Implementing provisions 
1. Member States shall adopt the laws, regulations 
and administrative provisions necessary to comply with 
this Directive by 31 December 1992. 
They shall immediately inform the Commission thereof. When Member States adopt these provisions, they shall 
contain a reference to this Directive or shall be accom­
panied by such reference at the time of their official 
publication. The procedure for such reference shall be 
adopted by Member States. 
2. Member States shall communicate to the 
Commission the provisions of national law which they 
adopt in the area governed by this Directive. 
Article 13 
Final provision 
This Directive is addressed to the Member States.