COMMISSION OF THE EUROPEAN COMMUNITIES 
COM(94) 260 final 
Brussels, 23.06.1994 
COMMUNICATION FROM THE COMMISSION 
ON NEW DIRECTIONS 
ON THE LIABILITY OF SUPPLIERS OF SERVICES 
COMMUNICATION FROM THE COMMISSION _ 
ON NEW DIRECTIONS 
ON THE LIABILITY OF SUPPLIERS OF SERVICES 
Background 
( 1) The idea of a Directive on the liability of suppliers of services cropped up only 
recently, after adoption of the Directive on liability for defective products in 19851. 
No Community measures had previously been taken in this domain, although the 
possi_bility of introducing measures concerning liability for services had already 
been envisaged, notably while preparing the Directive on general product safety. 
(2) The 1985 Directive established a system of no-fault liability for damage caused by 
defective productS. As regards services, one initial approach was that the same 
system should apply to products and services, which would also have entailed a 
system of no-fault liability for services. However on closer scrutiny it was 
considered preferable not to overturn the national systems, which are generally 
based on with-fault liability. Ultimately .. a system envisaging with-f~t liability with 
reversal of the burden or proof was adopted in the Commission~s proposal ori 24 
October 1990. 
Council Directive of 25 July 1985 on the approximation of the laws. regulations and administrative 
provisions of the Member States concerning liability for defective products (85/374/EEC) -OJ EC 
L 210 of 7.8.1985, p. 29. 
(.3) It should also be noted that the 1985 Directive on liability for defective products 
was motivated not only by a concern for consumer protection but also by the 
imperatives of competition, given the widespread movement of products. 
(4) Apart from concern for competition in the field of services, the main objective of 
the October 1990 proposal was safety of services in order to foster consumer 
confidence in the internal market. A measure envisaging harmonisation of the 
liability systems was the instrument adopted to achieve this safety objective. The 
idea was that suppliers would have an interest in rendering safe services which do· 
not cause damage, rather than having to prove their absence of fault or, failing this, 
compensate th:e victims. 
Work to date 
(5) The proposal was welcomed by the Committee on the Environment, Public Health 
and Consu~er Protection of the European Parliament and, on the whole, by 
consumer associations. The European Parliament's Committee on Economic and 
Monetary Affairs also adopted certain amendments favourable to consumers. 
(6) On the downside, however, the Economic and Social Committee rejected the 
proposal in an opinion delivered in 1991 and many professional circles came out 
against it. It was the subject· of intense discussion within the Committee on Legal 
Affairs and Citizens' Rights, responsible for this dossier at the European Parliament, 
and this finaliy led to the adoption o~ amendments which would have voided the 
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proposal of much of its substance, notably by excluding, a number of important 
sectors. Since this dossier was referred back to it at the plenary session of the 
European Parliament in January 1993, the Legal Affairs Committee at its meeting 
.of 22 and 23 November 1993 asked for the presentation of a new proposal in this 
domain. 
(7) The debates on the Commission's proposal have seen the emergence of three 
alternative scenarios for a possible Community system. 
a) With-fault liability with reversal of the burden of proof, as proposed by the 
Commission. 
b) The Committee on Legal Affairs and Citizens' Rights at the European 
Parliament has developed a formula of with-fault liability for obligations as 
to th~ means to be employed and strict liability, i.e. without fault, for 
obligations as to the results to be achieved. 
c) The third hypothesis has up to now only been envisaged but not debated It 
would involve a system of with-fault liability with reversal of the burden of 
proof and would introduce the notion of defective service. The defective 
service would be defined in relation to legitimate expectations and would 
have to be proven by the consumer. 
(8) From the discussions to date -the following two major conclusions may be drawn: 
the consumers sense of weakness in a dispute with a professional most often 
results from a gap between the consumers expectations and the actual content 
ofthis professional's undertaking (see scenarios (b) and (c) referred to under 
point 7); 
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on the other hand, is it necessary to consider the specific circumstances of 
different service sectors, notably construction services and medical services. 
(9) Under these circumstances, it seems that the Commission's proposal stands no 
chance of being adopted without sweeping changes which would risk voiding it of 
much of its substance. 
SabsidUuity 
( 1 0) The Edinburgh European Council noted, in one of its conclusions, that the 
Commission intended to review various proposals, including the Directive on the 
liability of suppliers of services, around general principles which the Member States 
could supplement. 
( 11) Any future Community measure concerning safety_ of services will have to take into 
account Article 129a of the EC Treaty, according to which the Community must 
· contribute to the attainment of a high level of consumer protection. 
New directions for the Commission's work 
(12) The problem of the liability of suppliers of services must be placed in a wider 
context than that of the 1990 proposal. Apart from improving the safety of services, 
the Commission is generally concerned about the consumer's standing in relations 
with suppliers of services and the difficulty of bringing an action in the event of a 
dispute. All avenues must hence be explored in order to do greater justice to this 
general concern. 
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(13) As regards relations ·between consumers and suppliers ·or services, better 
information of consumers is a must. This inforniation ranges from ensuring the 
clearest possible definition of what the supplier is actually promising and, hence, 
the consumer's legitimate expectations. The development of standards, codes of 
conduct ·and rules of the trade, to which the supplier could refer, would make it 
easier ·to clarify the undertaking and .the attendant legitimate expectation. The 
Commission wishes to encourage and support the development of such voluntary 
rules at Community level, even if this is a long-term task, and without excluding 
the possibility of introducing directives. 
(14) Finally, possible solutions may be identified in the context of the Commission's 
follow-up to the Green Paper which it adopted in 1993, concerning guarantees for 
consumer goods and after-sales services (COM(93) 509 of 15 November 1993). 
(15) As regards access to justice, the fact remains that it will continue to be difficult and 
costly even if a more simplified and consumer-friendly liability system would 
encourage the development of negotiated solutions. It is in the interest of consumers 
-but often too of the suppliers themselves -to develop procedures for the 
simplified settlement of disputes. The Sutherland report has already aired a number 
of ideas in this domain. The creation of arbitration committees and ombudsmen will 
bring tangible improvements, while meeting the specific needs of the different 
sectors. The Commission will make concrete proposals as a follow-up to the Green 
Paper it has adopted on the access of consumers to justice and the settlement of 
consumer disputes in the single market (COM(93)576 of 16 November 1993). 
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(16) Finally, the specific circumstances of different services deserve greater 
consideration. The Commission will if necessary prepare draft texts concerning 
sectors in respect of which particular needs are. established. 
Concbuitm 
( 17) All the above considerations -the negative reaction of the Economic and Social 
Committee and the responsible Committee at the European Parliament, severe 
criticisms from various professional circles in the services sector, and the need to 
examine the problem of the liability of suppliers of services in a wider context ·­
have led the Commission to adopt new directions in this important domain. This 
means that the proposal of 20 December 1990 has to be withdrawn. In doing so 
we are not abandoning our concern for the safety of services. On the contrary, it 
is necessary to reconsider the best way of achieving this goal on the basis of 
appropriate consultations. 
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