Opinion of the Economic and Social Committee on the 'Proposal for a European Parliament and Council Directive amending Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products'
Date: 1998-01-29
Institutions: European Economic and Social Committee
Subjects: application of EU law, approximation of laws, consumer protection, defective product, product safety

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C 95/69

economic cycle; a policy that will put investment in
education and training on an equal footing with other
productive investment; a policy, finally, that will make

Europe and its citizens more competitive and at the
same time more aware of their history, values and
prospects for the future.

Brussels, 28 January 1998.

The President

of the Economic and Social Committee

Tom JENKINS

Opinion of the Economic and Social Committee on the ‘Proposal for a European Parliament
and Council Directive amending Council Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative provisions of the Member States
concerning liability for defective products’ (1)

(98/C 95/17)

On 30 October 1997, the Council decided to consult the Economic and Social Committee,
under Article 100a of the Treaty establishing the European Community, on the above-mentioned
proposal.

The Section for Protection of the Environment, Public Health and Consumer Affairs, which
was responsible for preparing the Committee’s work on the subject, adopted its opinion on
6 January 1998. The rapporteur was Mr Herna´ndez Bataller.

At its 351st plenary session (meeting of 29 January 1998) the Economic and Social Committee
adopted the following opinion by 99 votes to 14 with 7 abstentions.

1.

Introduction

1.1.
Council Directive 85/374/EEC of 25 July 1985,
on the approximation of the laws, regulations and
administrative provisions of the Member States concern-
ing liability for defective products (2), excluded primary
agricultural products and game from the scope of
its definition of ‘product’. For this purpose, primary
agricultural products were defined as products of the soil,
of stock-farming and of fisheries, excluding products
which had undergone initial processing.

1.2.
The initial proposal for the directive drafted by
the Commission did not include the exclusion: this was
inserted during the negotiation process, at the request
of the European Parliament.

1.3.

Directive 85/374/EEC introduces a framework

(1) OJ C 337, 7.11.1997, p. 54.
(2) OJ L 210, 7.8.1985.

for producer liability for defective products along the
following basic lines:

— liability without fault is established. Consequently,
the injured person is required to prove the damage,
the defect and the causal relationship between defect
and damage, without having to prove fault;

— a product is deemed defective when it does not
provide the safety which a person is entitled to expect,
taking all circumstances into account, including: the
presentation of the product, the use to which it could
reasonably be expected that the product would be
put and the time when the product was put into
circulation; a product is not considered defective for
the sole reason that a better product is subsequently
put into circulation;

— ‘damage’ is taken to mean damage caused by death
or by personal injuries, and damage to, or destruction
of, any item of property other than the defective
product itself, with a lower threshold of ECU 500;

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— a limitation period of three years is applied to
proceedings for the recovery of damages, from the
day on which the plaintiff became aware, or should
reasonably have become aware, of the damage, the
defect and the identity of the producer; the rights
conferred upon the injured person pursuant to this
directive are extinguished upon the expiry of a period
of ten years from the date on which the producer
put into circulation the actual product which caused
the damage;

— the liability of the producer arising from this directive
may not, in relation to the injured person, be limited
or excluded by a provision limiting his liability or
exempting him from liability;

— a number of grounds for exemption from liability

are listed (‘producer’s defence’)

— any Member State may provide that a producer’s
total liability for damage resulting from a death or
personal injury and caused by identical items with
the same defect shall be limited to an amount which
may not be less than ECU 70 million;

— every five years the Council, acting on a proposal
from the Commission, is to examine and, if need
be, revise the amounts in this directive, such as
compensatory limit and threshold, in the light of
economic and monetary trends in the Community.

1.4.
As early as 1991, the Economic and Social
Committee, in its opinion on consumer protection and
completion of the internal market (1), was expressing
the view that ‘the internal market can only operate
effectively if the consumer has confidence in the safety
of the products on offer. To this end it is important to
pursue a consistent product safety policy, one aspect of
which is liability for defective products. The Committee
therefore asks the Commission to start work on
extending the scope of the product liability directive to
include agricultural food products and development
risks. The principle of the free movement of products
further requires the setting-up of a Community fund to
compensate the victims of defective products’.

1.4.1.
The ESC’s opinion on bovine spongiform
encephalopathy (BSE) (2) restated the need to look at the
effectiveness of Directive 92/59/EEC on general product
safety and to review Directive 85/374/EEC on liability
for defective products, so as to broaden its scope to
include agricultural products and the risks associated
with them.

1.5.
The European Parliament, in its resolution of
19 February 1997 on the results of the Temporary

Committee of Inquiry into BSE (3), asked the Com-
mission to follow up the recommendations contained in
the Temporary Committee’s report and to ensure
that the appropriate legislative, administrative and
staff-related steps were taken without delay.

1.5.1. One of the legislative steps which the European
Parliament asked the Commission to take was the
request for a proposal, by September 1997 at the latest,
for Community legislation on product liability to be
amended to include primary products.

1.5.2.
Partly in response to this resolution, the Com-
mission published a Green Paper on the General prin-
ciples of food law in the European Union (4), which set
out several basic goals for Community food law. The
regulatory approach should cover the whole food chain
‘from the stable to the table’, thereby raising a series
of questions, including the issue of the principle of
producers’ civil liability for defective products, as laid
out in Directive 85/374/EEC, being made obligatory for
primary agricultural production.

The green paper mentioned the possibility of
1.5.3.
amending the scope of the product liability directive to
cover unprocessed primary agricultural products; this
was not, however, seen as an alternative to the develop-
ment of appropriate product-safety regulations and
effective official control systems, but as an additional
measure in its own right.

The Committee, in its opinion on the green
1.5.4.
paper (5), once again showed itself to be in favour
of unprocessed primary agricultural products being
covered by Directive 85/374/EEC.

2. The Commission’s proposal

2.1.
The proposal’s objectives are to increase the level
of consumer protection against damage caused to their
health and property by a defective product and to further
the approximation of national laws concerning civil
liability for defective products.

These objectives form part of the strategic
2.1.1.
target of delivering a single market for the benefit of all
citizens, as set out by the Commission in its action plan
for the single market (6).

(1) OJ C 339, 31.12.1991 — point 5.3.4.
(2) OJ C 295, 7.10.1996.

(3) OJ C 85, 17.3.1997.
(4) COM(97) 176 final.
(5) OJ C 19, 21.1.1998.
(6) CSE (97) 1 final, 4.6.1997.

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2.1.2.
Furthermore, the proposed measure is suitable
for raising consumer confidence in all products sold in
the single market and is one of the areas where
the Community enjoys exclusive competence, i.e. the
establishment and functioning of the single market.

The Commission’s proposal deletes the exception
2.2.
regarding ‘primary agricultural products and game’
from Article 2 of Directive 85/374/EEC. The term
‘agricultural products’ is taken from Article 38(1) of the
EC Treaty and covers those products listed in Annex II
to the Treaty.

2.2.1.
All of the rules of Directive 85/374/EEC will
thereby apply to agricultural producers: the injured
person’s burden of proof of damage, defect and causal
relationship; joint and several liability; where more than
one person is liable; the notion of defect; the reasons for
exemption from liability under Article 7 (1); the damage
covered; the time limits for proceedings for recovery of
damages; the fact that liability may not voluntarily be
limited or excluded; and the fact that other rules of the
law of contractual or non-contractual liability are not
affected.

2.3.
The new rules are to apply to agricultural
products and game put into circulation from the date
on which the directive enters into force, i.e. the directive
will not have retroactive effect.

3. General comments

3.1.
The Committee welcomes the Commission’s
proposal for a directive, which is consistent with the
Committee’s repeated calls, voiced in several opinions,
for primary agricultural products and game to be
included within the scope of Directive 85/374/EEC.

3.2.
The Committee shares the Commission’s view
that greater health protection at every stage of the food
chain is one of the European public’s main expectations,
and considers the adoption of measures, such as the
present draft directive, intended to boost consumer
confidence, to be a priority.

In attaining the objectives of the common
3.2.1.
agricultural policy, account must be taken of require-
ments in the general interest, such as the protection of
consumers or of human health and life, with which the
Community institutions must comply when exercising
their powers.

3.2.2.
The creation of a genuine single market requires
that adequate safeguards be established in the field of
public health, backed up by adequate quality controls.
Moreover, paying heed to public health issues is not just
about the need to raise or, in this particular case, restore
consumer confidence so that the market functions
properly. Ultimately it derives from the overriding
requirement to protect citizens’ rights, the foundation
of the entire Community legal system.

3.2.3.
The proposed directive should allow a higher
level of protection of public health, which is one of the
explicitly mentioned objectives of the Treaty.

The Committee deems the application of the
3.2.4.
prevention principle to be a health protection priority.

The application of the principle of free movement
3.3.
of goods must entail meeting those requirements that
are especially vital for the protection of human health
and life. On occasion, this may mean the adoption of
appropriate measures aimed at ensuring an acceptable
level of public health. In particular, the Committee is in
favour of rules requiring producers to place on the
market only such products as are safe and of making
producers liable for repairing any damage caused by
defective products.

3.4.
The proposed directive would be a further step
towards the harmonization of the single market and
obviate distortions of competition between producers
who are subject to different arrangements depending on
where their product is placed on the market. The
Committee is, therefore, in favour of eliminating such
discrimination between Community producers.

The extension of

3.5.
scope of Directive
85/374/EEC proposed by the Commission could lead to
a higher level of consumer protection by:

the

— offering consumers justified grounds for redress for
liability without fault previously denied to them,
which will strengthen their legal position when it
comes to safeguarding their legitimate interests,
defending their rights as customers and securing
compensation for damage caused by defective prod-
ucts;

— encouraging compliance with the general obligation
to produce safer products, as it would apply through
the entire food chain, from primary production to
the final point of retail to the consumer;

(1) Including, under (d) if ‘the defect is due to compliance of
the product with mandatory regulations issued by the
public authorities’.

— making it easier to trace the party responsible for
putting a defective primary agricultural product into
if this
circulation (‘product traceability’), since,

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producer cannot be identified, each supplier of the
product can be treated as its producer.

developments (such as genetically modified organisms)
can be insured.

3.6.
The Committee is also of the opinion that the
proposed directive should not impose additional burdens
on the producers involved. Furthermore, experience
with the working of Directive 85/374/EEC suggests that
the proposal is unlikely to lead to a substantial rise in
either the number of complaints or the level of insurance
premiums.

The Committee is of the opinion that, following
3.7.
the adoption of this proposal, there ought to be an
overall examination of the system set out in Directive
85/374/EEC in the light of the current state of Com-
munity law and the reports on its implementation.

3.7.1.
The overall examination should take the form
of a green paper, so that representatives of social and
economic activity may be consulted.

The Committee urges the Commission to
3.6.1.
ensure, when drawing Community legislation in the
field of insurance, that new risks arising from market

The examination should focus especially on
3.7.2.
the burden of proof, development risks, economic
ceilings, and time limits for certain products.

Brussels, 29 January 1998.

The President

of the Economic and Social Committee

Tom JENKINS

Opinion of the Economic and Social Committee on ‘Consumers in the insurance market’

(98/C 95/18)

On 20 March 1997 the Economic and Social Committee, acting under the third paragraph of
Rule 23 of its Rules of Procedure, decided to draw up an opinion on ‘Consumers in the
insurance market’.

The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 7 January 1998. The rapporteur
was Mr Ataı´de Ferreira.

At its 351st plenary session (meeting of 29 January 1998), the Economic and Social Committee
adopted the following opinion by 77 votes in favour and three abstentions.

1.

Introduction: scope of the opinion

The importance of insurance in general economic
1.1.
activity in the single market is well recognized;
it
accounts for a substantial proportion of the volume of
trade in financial services and a very high percentage of
employment in the sector.

1.2.
Furthermore, in today’s world where technologi-
cal progress entails an inevitable increase in risks and
changes in the concept of fault for the definition of third
party liability, the insurance industry is playing an
increasingly important role in society.

Moreover, in the insurance sector the introduction of
the euro is inevitably leading to new developments,
marked in particular by greater transparency and easier
subscription of cross-border contracts.

The demographic explosion associated with an
1.3.
ageing population, combined with the need for security
which goes hand in hand with the inherently vulnerable
nature of human existence, serves to intensify growing
concern about the future. From this viewpoint, insurance
constitutes an undeniable instrument for redistributing
and spreading risks across society; it is moreover a