26. 10.79 Official  Journal  of the  European  Communities No C 271/3 
II 
(Preparatory  Acts) 
COMMISSION 
Amendment  of 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  (l) 
(Submitted  by the Commission  to the Council  on 1 October  1979  pursuant  to Article  149  (2) 
of the EEC  Treaty) 
COMMUNITIES, 
Having  regard  to  the  Treaty  establishing  the 
European  Economic  Community,  ahd  in particular 
Article  100  thereof, 
Having  regard  to the proposal  from  the Commission, 
Having  regard  to the  opinion  of the  European  Par-
liament, 
Having  regard  to the  opinion  of the  Economic  and 
Social  Committee, 
Whereas  the  approximation  of the  laws  of the  unchanged 
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; ORIGINAL  TEXT AMENDED  TEXT  (') 
THE  COUNCIL  OF  THE  EUROPEAN unchanged 
(') OJ  N. C 241,  14. 10. 1976,  p. 9. (2) The  modifications  of the  original  version  are  printed  in 
bold  type. 
No C 271/4 Official  Journal  of the  European  Communities 26. 10. 79 
ORIGINAL  TEXT  AMENDED  TEXT 
Wheras  approximation  is also  necessary  because  the  unchanged 
free movement  of goods  within  the  common  market 
may be influenced  by divergencies  in laws;  whereas 
decisions  as to where  goods  are sold  should  be based 
on economic  and  not  legal  considerations; 
Whereas,  lastly,  approximation  is necessary  because  unchanged 
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  unchanged 
consumer  can  be achieved  only  through  the  intro-
duction  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  insur-
mountable  difficulties  of proof  or does  not  cover  the 
important  causes  of damage; 
Whereas  liability  on  the  part  of  the  producer  unchanged 
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 moveables; 
whereas  in the interest  of the consumer  it nevertheless 
should  cover  all  types  of  moveables,  including 
therefore  agricultural  produce  and  craft  products; 
whereas  it should  also  apply  to moveables  which  are 
used  in the construction  of buildings  or are  installed 
in buildings; unchanged 
Whereas  liability  should  extend  only  to moveables 
which  have  been  industrially  produced;  [22  words 
omitted]  that  as a result  it is appropriate  to exclude 
liability  for  agricultural  craft  and  artistic  products; 
that the liability  provided  for by this  Directive  should 
also apply  to moveables  which  are  used  in the  con-
struction  of buildings  or are installed  in buildings; 
Whereas  the protection  of the consumer  requires  that  unchanged 
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 
26. 10. 79 Official  Journal  of the  European  Communities No C 271/5 
ORIGINAL  TEXT  AMENDED  TEXT 
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  unchanged 
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  law  of the 
individual  Member  States; 
Wheras  to protect  the  person  and  property  of the  unchanged 
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  should  no longer  be liable  when 
the product  has  not  been  made  in the  course  of 
business  activities; 
Whereas  account  should  be taken  of the  contributory 
negligence  of the  plaintiff  in the  apportionment  of 
damages. 
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; unchanged 
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  in order  to protect  both  the  health  and  the 
private  property  of  the  consumer,  damage  to 
property,  nonmaterial  damage  and  compensation  for 
pain  and  suffering  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  the  damage  recoverable  should  also  include 
compensations  for  pain  and  suffering  and  other 
nonmaterial  damages; 
Whereas  compensation  for  damage  caused  in the  unchanged 
business  sector  remains  to be governed  by the laws  of 
the individual  States; 
No C 271/6 Official  Journal  of the  European  Communities 26. 10. 79 
ORIGINAL  TEXT 
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  moveable  and  immoveable  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  3289/75/ECSC  of 18  De-
cember  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; AMENDED  TEXT 
unchanged 
Whereas  if the liability  of the producer  is not based  on 
fault,  it is not  appropriate  to establish  indemnity 
ceilings  which  the  Council  can  revise  and  eventually 
eliminate  in relation  to personal  injuries. 
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;  [77 words  omitted] 
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  initially  on an estimated  average  of 
private  assets  in a typical  case;  whereas  since  this 
private  property  includes  moveable  and  immoveable 
property,  although  the  two  are  usually  by the nature 
of things  of different  value,  different  amounts  of 
liability  should  be provided  for; 
unchanged 
Whereas  the  European  unit  of account  is defined  in 
Article  10 of the  Financial  Regulation  of 21 De-
cember  1977  (2); 
(') OJ  No L 327,  19. 12. 1975.  Also  the Council  Decision  of 
21. 4. 1975  on the  definition  and  conversion  of the 
European  unit  of account  used  for  expressing  the 
amounts  of aid mentioned  in Article  42 of the ACP-EEC 
Convention  of Lome,  OJ No L 104,  24. 4. 1975.  (2)  OJ  No L 356,  31. 12. 1977,  p. 1. 
26. 10. 79 Official  Journal  of the  European  Communities No C 271/7 
ORIGINAL  TEXT 
Whereas  the movement  recorded  in the economic  and 
monetary  situation  in the  Community  justifies  a 
periodic  review  of the ceilings  fixed  by the Directive; AMENDED  TEXT 
Whereas  the Council  should  proceed  every  three  years 
to examine  the  amounts  fixed  by the  Directive  to see 
whether,  having  regard  to economic  and  monetary 
movement  in the  Community,  it is appropriate  to 
revise  or even  eliminate  the  ceiling  established  for 
liability  for  personal  injuries  and  to  revise  that 
provided  for liability  for damage  to property; 
Whereas  a uniform  period  of  limitation  for  the  unchanged 
bringing  of action  for  compensation  in respect  of the 
damage  caused  is in the  interest  both  of consumers 
and of industry;  it appeared  appropriate  to provide 
for a three-year  period; 
Whereas  since  products  age  in the  course  of time,  unchanged 
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; 
Whereas  to achieve  balanced  and  adequate  protection  unchanged 
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  those  provided  for  in this 
Directive;  whereas  since  these  provisions  also  serve  to 
attain  the  objective  of an  adequate  protection  of 
consumers,  they  remain  unaffected; 
Where  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, unchanged 
unchanged 
HAS  ADOPTED  THIS  DIRECTIVE: 
Article  1 Article  1 
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  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.  This 
provision  applies  also  if the  article  has  been  incor-
porated  in immovable  property. 
The producer  shall  be liable  even  if the  article  could  unchanged 
not have  been  regarded  as defective  in the light  of the 
No C 271/8 Official  Journal  of the  European  Communities 26. 10. 79 
ORIGINAL  TEXT 
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  identiy  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  l>e 
did not  put  the article  into  circulation  or that  it was 
not defective  when  he put it into  circulation. AMENDED-TEXT 
The producer  is not liable  under  the provisions  of this 
Directive  if the  defective  article  is a primary  agri-
cultural  product,  a craft  or an artistic  product  when  it 
is clear  that  it is not industrially  produced. 
Article  2 
unchanged 
Article  3 
Where  two  or more  persons  are  liable  in respect  of 
the same  damage,  they  shall  be liable  jointly  and 
severally,  each  person  retaining  the  right  to 
compensation  from  the others. 
Article  4 
A product  is defective  when,  being  used  for  the 
purpose  for  which  it is apparently  intended,  it does 
not provide  for persons  or property  the safety  which 
a person  is entitled  to expect,  taking  into  account  all 
the circumstances,  including  its presentation  and  the 
time  at which  it was  put into  circulation. 
Article  5 
The producer  shall  not be liable  if he proves: 
(a) that  he did not put the article  into  circulation, 
(b) that,  having  regard  to all the circumstances,  it was 
not defective  when  he put it into  circulation; 
(c) that  the article  was  neither  produced  for sale,  hire 
or any  other  kind  of  distribution  for  the 
commercial  purposes  of  the  producer  nor 
26. 10. 79 Official  Journal  of the  European  Communities No C 271/9 
ORIGINAL  TEXT  AMENDED  TEXT 
produced  and  distributed  within  the course  of his 
business  activities. 
If the  victim  or any  person  for whom  he is liable  has 
by his  fault  contributed  to  the  damage  the 
compensation  payable  may  be  reduced  or  no 
compensation  may  be awarded. 
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  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 
exclusively  for  the  purpose  of his  trade, 
business  or profession, 
(c) damages  for  pain  and  suffering  and  other  non-
material  damage. 
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). 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  may  be limited  to a 
maximum  amount  which  is to be determined  by a 
qualified  majority  of the  Council  acting  on a proposal 
from  the  Commission.  Prior  to any  such  determi-
nation  by the Council  this  amount  shall  be fixed  at 25 
million  European  units  of account  (EUA). 
This  amount  also  includes  the  damages  specified  in 
Article  6 (c)  when  they  are  related  to death  or 
personal  injury. 
The liability  of the  producer  provided  for  by this  unchanged 
Directive  in respect  of damage  to property  shall  be 
limited  per capita: 
— in the case  of moveable  property  to 15 000  EUA, 
and 
— in the  case  of immoveable  property  to 50 000 
EUA. 
This  amount  also  includes  the  damages  specified  in 
Article  6 (c)  when  they  are  related  to material 
damage. 
No C 271/10 Official  Journal  of the  European  Communities 26. 10. 79 
ORIGINAL  TEXT 
The European  unit  of account  (EUA)  is as defined  by 
Commission  Decision  3289/75/ECSC  of 18  De-
cember  1975. 
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  spcified  in EUA  in this 
Article,  having  regard  to economic  and  monetary 
movement  in the Community. 
Article  8 
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  circu-
lation  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. AMENDED  TEXT 
The European  unit  of account  (EUA)  is as defined  by 
Article  10 of the  Financial  Regulation  of 21 De-
cember  1977. 
unchanged 
The Council  shall,  on a report  from  the Commission, 
examine  every  three  years  the  amounts  specified  in 
this Article.  Where  necessary,  the  Council  shall, 
acting  by a qualified  majority  on a proposal  from  the 
Commission,  revise  or cancel  the amount  specified  in 
paragraph  1 of this  Article  or revise  the  amounts 
specified  in paragraph  three,  taking  into  consideration 
economic  and  monetary  movement  in  the 
Community. 
Article  8 
unchanged 
Article  9 
The liability  of the producer  shall  be extinguished  if 
an action  is not brought  within  10 years  from  the date 
on which  the  producer  put  into  circulation  the 
individual  product  which  caused  the damage. 
Article  10 
unchanged 
Article  11 
unchanged 
26. 10. 79 Official  Journal  of the  European  Communities No C 271/11 
ORIGINAL  TEXT  AMENDED  TEXT 
Article  12 Article  12 
This Directive  does  not  apply  to injury  or damage  unchanged 
arising  from  nuclear  accidents. 
Article  13 Article  13 
Member  States  shall  bring  into  force  the provisions  unchanged 
necessary  to comply  with  this  Directive  within  18 
months  and  shall  forthwith  inform  the Commission 
thereof. 
Article  14 Article  14 
Member  States  shall  communicate  to the Commission  unchanged 
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 Member  States. Article  15 
unchanged