14. 10. 76 Official  Journal  of the  European  Communities No C 241/9 
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 
(Submitted  by  the Commission  to  the Council  on 9 September  1976) 
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, 
Having  regard  to the  opinion  of the  European 
Parliament, 
Having  regard  to the  opinion  of the  Economic  and 
Social  Committee, 
Whereas  the  approximation  of  the  laws  of the 
Member  States  concerning  the  liability  of  the 
producer  for  damage  caused  by the  defectiveness  of 
his products  is necessary,  because  the  divergencies 
may distort  competition  in the  common  market; 
whereas  rules  on liability  which  vary  in severity  lead 
to differing  costs  for industry  in the various  Member 
States  and  in particular  for  producers  in different 
Member  States  who  are  in competition  with  one 
another; 
Whereas  approximation  is also  necessary  because  the 
free movement  of goods  within  the  common  market 
may be influenced  by divergencies  in laws;  whereas 
Decisions  as to where  goods  are sold  should  he based 
on economic  and  not  legal  considerations; 
Whereas,  lastly,  approximation  is necessary  because 
the consumer  is protected  against  damage  caused  to 
his health  and  property  by a defective  product  either 
in differing  degrees  or in most  cases  not  at all, 
according  to the conditions  which  govern  the liability 
of the producer  under  the individual  laws  of Member 
States;  whereas  to this  extent  therefore  a common 
market  for consumers  does  not as yet exist; 
Whereas  an equal  and  adequate  protection  of the 
consumer  can  be  achieved  only  through  the 
introduction  of liability  irrespective  of fault  on the 
part of the  producer  of the  article  which  was 
defective  and  caused  the  damage;  whereas  any  other 
type  of liability  imposes  on the  injured  party  almost insurmountable  difficulties  of proof  or does  not  cover 
the important  causes  of damage; 
Whereas  liability  on  the  part  of  the  producer 
irrespective  of fault  ensures  an appropriate  solution 
to this  problem  in an age  of increasing  technicality, 
because  he can  include  the  expenditure  which  he 
incurs  to cover  this  liability  in his production  costs 
when  calculating  the  price  and  therefore  divide  it 
among  all consumers  of products  which  are  of the 
same  type  but free  from  defects; 
Whereas  liability  cannot  be  excluded  for  those 
products  which  at the  time  when  the  producer  put 
them  into  circulation  could  not  have  been  regarded 
as defective  according  to the  state  of science  and 
technology  (development  risks),  since  otherwise  the 
consumer  would  be subjected  without  protection  to 
the risk  that  the  defectiveness  of a product  is 
discovered  only  during  use; 
Whereas  liability  should  extend  only  to movables; 
whereas  in  the  interest  of  the  consumer  it 
nevertheless  should  cover  all  types  of movables, 
including  therefore  agricultural  produce  and  craft 
products;  whereas  it should  also  apply  to movables 
which  are used  in the construction  of buildings  or are 
installed  in buildings; 
Whereas  the protection  of the consumer  requires  that 
all producers  involved  in the  production  process 
should  be made  liable,  in so far  as their  finished 
product  or component  part  or any  raw  material 
supplied  by them  was  defective;  whereas  for the same 
reason  liability  should  extend  to persons  who  market 
a product  bearing  their  name,  trademark  or other 
distinguishing  feature,  to dealers  who  do not  reveal 
the identity  of producers  known  only  to them,  and  to 
importers  of products  manufactured  outside  the 
European  Community; 
Whereas  where  several  persons  are  liable,  the 
protection  of the  consumer  requires  that  the  injured 
person  should  be  able  to sue  each  one  for  full 
compensation  for  the  damage,  but  any  right  of 
recourse  enjoyed  in certain  circumstances  against 
other  producers  by  the  person  paying  such 
compensation  shall  be governed  by the  laws  of the 
individual  Member  States; 
No C 241/10 Official  Journal  of the European  Communities 14.10.  76 
Whereas  to protect  the  person  and  property  of the 
consumer,  it is  necessary,  in  determining  the 
defectiveness  of a product,  to concentrate  not  on the 
fact that  it is unfit  for use  but  on the  fact  that  it is 
unsafe;  whereas  this  can  only  be a question  of safety 
which  objectively  one  is entitled  to expect; 
Whereas  the  producer  is not  liable  where  the 
defective  product  was  put  into  circulation  against  his 
will or where  it became  defective  only  after  he had 
put it into  circulation  and  accordingly  the  defect  did 
not originate  in  the  production  process;  the 
presumption  nevertheless  is to the contrary  unless  he 
furnishes  proof  as to the exonerating  circumstances; 
Whereas  in order  to protect  both  the  health  and  the 
private  property  of the  consumer,  damage  to property 
is included  as damage  for  which  compensation  is 
payable  in addition  to compensation  for  death  and 
personal  injury;  whereas  compensation  for damage  to 
property  should  nevertheless  be limited  to goods 
which  are not used  for commercial  purposes; 
Whereas  compensation  for  damage  caused  in the 
business  sector  remains  to be governed  by the laws  of 
the individual  States; 
Whereas  the  assessment  of whether  there  exists  a 
causal  connection  between  the defect  and  the damage 
in any  particular  case  is left  to the  law  of each 
Member  State; 
Whereas  since  the  liability  of the  producer  is made 
independent  of fault,  it is necessary  to limit  the 
amount  of liability;  whereas  unlimited  liability  means 
that the risk  of damage  cannot  be calculated  and  can. 
be insured  against  only  at high  cost; 
Whereas  since  the possible  extent  of damage  usually 
differs  according  to whether  it is personal  injury  or 
damage  to  property,  different  limits  should  be 
imposed  on the  amount  of liability;  whereas  in the 
case of personal  injury  the need  for the damage  to be 
calculable  is met  where  an overall  limit  to liability  is 
provided  for;  whereas  the  stipulated  limit  of 25 
million  European  units  of account  covers  most  of the 
mass  claims  and  provides  in individual  cases,  which 
in practice  are  the  most  important,  for  unlimited 
liability;  whereas  in the  case  of the  extremely  rare mass  claims  which  together  exceed  this  sum  and  may 
therefore  be classed  as major  disasters,  there  might  be 
under  certain  circumstances  assistance  from  the 
public; 
Whereas  in the much  more  frequent  cases  of damage 
to property,  however,  it is appropriate  to provide  for 
a limitation  of liability  in any  particular  case,  since 
only  through  such  a limitation  can  the liability  of the 
producer  be  calculated;  whereas  the  maximum 
amount  is based  on an estimated  average  of private 
assets  in a typical  case;  whereas  since  this  private 
property  includes  movable  and  immovable  property, 
although  the  two  are  usually  by the  nature  of things 
of different  value,  different  amounts  of liability 
should  be provided  for; 
Whereas  the  limitation  of compensation  for  damage 
to property  to damage  to or destruction  of private 
assets  avoids  the  danger  that  this  liability  becomes 
limitless;  whereas  it is therefore  not  necessary  to 
provide  for  an overall  limit  in addition  to the  limits 
to liability  in individual  cases; 
Whereas  by  Decision  No  3289/75/ECSC  of 
18 December  1975  (') the Commission,  with  the assent 
of the  Council,  defined  a European  unit  of account 
which  reflects  the average  variation  in value  of the 
currencies  of the Member  States  of the Community; 
Whereas  the movement  recorded  in the economic  and 
monetary  situation  in the  Community  justifies  a 
periodical  review  of  the  ceilings  fixed  by  the 
Directive; 
Whereas  a uniform  period  of limitation  for  the 
bringing  of action  for compensation  in respect  of the 
damage  caused  is in the  interest  both  of consumers 
and of industry;  whereas  it appeared  appropriate  to 
provide  for a three-year  period; 
Whereas  since  products  age  in the  course  of time, 
higher  safety  standards  are developed  and  the state  of 
science  and  technology  progresses,  it would  be 
unreasonable  to make  the  producer  liable  for  an 
unlimited  period  for  the  defectiveness  of  his 
products;  whereas  therefore  the  liability  should  be 
limited  to a reasonable  length  of time;  whereas  this 
period  of time  cannot  be restricted  or interrupted 
under  laws  of the  Member  States,  whereas  this  is 
without  prejudice  to claims  pending  at law; 
(!) OJ No L 327,  19. 12. 1975,  p. 4. 
14. 10. 76 Official  Journal  of the  European  Communities No C 241/11 
Whereas  to achieve  balanced  and  adequate  protection 
of consumers  no derogation  as regards  the liability  of 
the producer  should  be permitted; 
Whereas  under  the  laws  of the  Member  States  an 
injured  party  may  have  a claim  for damages  based  on 
grounds  other  than  that  provided  for  in  this 
Directive;  whereas  since  these  provisions  also  serve  to 
attain  the  objective  of an adequate  protection  of 
consumers,  they  remain  unaffected; 
Whereas  since  liability  for nuclear  damage  is already 
subject  in all  Member  States  to adequate  special 
rules,  it has  been  possible  to exclude  damage  of this 
type  from  the scope  of the Directive, 
HAS  ADOPTED  THIS  DIRECTIVE: 
Article  I 
The producer  of an article  shall  be liable  for damage 
caused  by a defect  in the  article,  whether  or not  he 
knew  or could  have  known  of the defect. 
The producer  shall  be liable  even  if the  article  could 
not have  been  regarded  as defective  in the light  of the 
scientific  and  technological  development  at the  time 
when  he put the article  into  circulation. 
Article  2 
'Producer'  means  the producer  of the finished  article, 
the producer  of any  material  or component,  and  any 
person  who,  by  putting  his  name,  trademark,  or 
other  distinguishing  feature  on the  article,  represents 
himself  as its producer. 
Where  the  producer  of  the  article  cannot  be 
identified,  each  supplier  of the article  shall  be treated 
as its producer  unless  he informs  the injured  person, 
within  a reasonable  time,  of the  identity  of the 
producer  or of the person  who  supplied  him  with  the 
article. 
Any person  who  imports  into  the  European 
Community  an article  for  resale  or similar  purpose 
shall  be treated  as its producer. Article  3 
Where  two  or more  persons  are  liable  in respect  of 
the same  damage,  they  shall  be liable  jointly  and 
severally. 
Article  4 
A product  is defective  when  it does  not  provide  for 
persons  or property  the  safety  which  a person  is 
entitled  to expect. 
Article  5 
The producer  shall  not  be liable  if he proves  that  he 
did not  put  the  article  into  circulation  or that  it was 
not defective  when  he put it into  circulation. 
Article  6 
For the purpose  of Article  1 'damage'  means: 
(a) death  or personal  injuries; 
(b) damage  to or destruction  of any  item  of property 
other  than  the  defective  article  itself  where  the 
item  of property: 
(i) is of a type  ordinarily  acquired  for  private 
use or consumption;  and 
(ii) was  not  acquired  or used  by the claimant  for 
the purpose  of  his  trade,  business  or 
profession. 
Article  7 
The total  liability  of the producer  provided  for in this 
Directive  for all personal  injuries  caused  by identical 
articles  having  the same  defect  shall  be limited  to 25 
million  European  units  of account  (EUA). 
The liability  of the  producer  provided  for  by this 
Directive  in respect  of damage  to property  shall  be 
limited  per capita: 
— in the  case  of movable  property  to 15 000  EUA, 
and 
— in the case  of immovable  property  to 50 000  EUA. 
The European  unit  of account  (EUA)  is as defined  by 
Commission  Decision  No  3289/75/ECSC  of 
18 December  1975. 
No C 241/12 Official  Journal  of the  European  Communities 14. 10. 76 
The equivalent  in  national  currency  shall  be 
determined  by applying  the  conversion  rate  prevailing 
on the  day  preceding  the  date  on which  the  amount 
of compensation  is finally  fixed. 
The Council  shall,  on  a  proposal  from  the 
Commission,  examine  every  three  years  and,  if 
necessary,  revise  the amounts  specified  in EUA  in this 
Article,  having  regard  to economic  and  monetary 
movement  in the  Community. 
Article  S 
A limitation  period  of three  years  shall  apply  to 
proceedings  for  the  recovery  of damages  as provided 
for in this  Directive.  The  limitation  period  shall  begin 
to run  on the  day  the  injured  person  became  aware, 
or should  reasonably  have  become  aware  of the 
damage,  the  defect  and  the  identity  of the  producer. 
The laws  of Member  States  regulating  suspension  or 
interruption  of the  period  shall  not  be affected  by 
this Directive. 
Article  9 
The liability  of a producer  shall  be extinguished  upon 
the expiry  of 10 years  from  the  end  of the  calendar 
year  in which  the  defective  article  was  put  into 
circulation  by the  producer,  unless  the  injured  person 
has in the  meantime  instituted  proceedings  against 
the producer. Article  10 
Liability  as provided  for  in this  Directive  may  not  be 
excluded  or limited. 
Article  11 
Claims  in respect  of injury  or damage  caused  by 
defective  articles  based  on grounds  other  than  that 
provided  for  in this  Directive  shall  not  be affected. 
Article  12 
This  Directive  does  not  apply  to injury  or damage 
arising  from  nuclear  accidents. 
Article  13 
Member  States  shall  bring  into  force  the  provisions 
necessary  to  comply  with  this  Directive  within 
18 months  and  shall  forthwith  inform  the 
Commission  thereof. 
Article  14 
Member  States  shall  communicate  to the  Commission 
the text  of the  main  provisions  of internal  law  which 
they  subsequently  adopt  in the  field  covered  by this 
Directive. 
Article  15 
This  Directive  is addressed  to the  Member  States.