Proposal for a European Parliament and Council Directive 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 (97/C 337/12) (Text with EEA relevance) COM(97) 478 final - 97/0244 (COD)

(submitted by the Commission on 1 October 1997)

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,

Having regard to the opinion of the Economic and Social Committee,

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

Whereas the safety of products and compensation for damage caused by defective products are overriding social needs which must be met within the internal market, an area in which products move freely; whereas the Community has responded to these requirements by means of Council Directive 85/374/EEC (1) and Council Directive 92/59/EEC (2) of 29 June 1992 on general product safety;

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 the said Directive has thus struck a reasonable balance between the interests involved, in particular the protection of the health of consumers, the incentive for innovation and scientific and technological development, the guarantee of undistorted competition, and the easing of trade by means of a system of harmonized civil liability; whereas the said Directive has thus helped to raise awareness among traders of the issue of product safety and the importance accorded to it;

Whereas the degree of harmonization between Member States' laws achieved by the Directive is not total in view of the derogations laid down, in particular with regard to its scope, from which unprocessed agricultural products are excluded;

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 (3); whereas, in this context, the Commission must, in accordance with Article 21, present a second report on the application of the Directive;

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

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

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

Whereas the principle of liability without fault laid down in Directive 85/274/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 listed in Annex II to the said Treaty;

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 is replaced by the following text:

'Article 2

For the purpose of this Directive "product" means all movables even though incorporated into another movable or into an immovable. "Product" includes electricity.`

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

Article 2

1. Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 1999. They shall forthwith inform the Commission thereof. They shall apply these provisions with effect from 1 January 1999.

When the Member States adopt these provisions, the latter shall contain a reference to this Directive or be accompanied by such reference when they are published officially. 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 twentieth day following its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

(1) OJ L 210, 7. 8. 1985, p. 29.

(2) OJ L 228, 11. 8. 1992, p. 24.

(3) First report on the application of the Directive, COM(95) 617, 13. 12. 1995.

ANNEX A

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