COMMON POSITION (EC) No 3/1999 adopted by the Council on 17 December 1998 with a view to the adoption of Directive 1999/.../EC of the European Parliament and of the Council of ... 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
Date: 1998-12-17
Institutions: Council of the European Union
Subjects: approximation of laws, consumer protection, defective product, producer's liability, product quality, product safety

22.2.1999

EN

Official  Journal  of  the  European  Communities

C  49/1

I

(Information)

COUNCIL

COMMON  POSITION  (EC)  No  3/1999

adopted  by  the  Council  on  17  December  1998  with  a  view  to  the  adoption  of  Directive
1999/. . ./EC of the European Parliament and of the Council of . . . 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

(1999/C  49/01)

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL  OF
THE  EUROPEAN  UNION,

92/59/EEC  of  29  June  1992  on  general  product
safety (5);

Having  regard  to  the  Treaty  establishing  the  European
Community,  and  in  particular  Article  100a  thereof,

Having  regard  to  the  proposal  from  the  Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189b  of  the  Treaty (3),

in  which  there 

reasonable  balance  between 

(2)  Whereas  Directive  85/374/EEC  established  a  fair
apportionment  of  the  risks  inherent  in  a  modern
society 
is  a  high  degree  of
technicality; whereas that Directive therefore struck
a 
interests
involved,  in  particular  the  protection  of  consumer
health,  encouraging  innovation  and  scientific  and
guaranteeing
technological 
development, 
trade
undistorted  competition  and 
under  a  harmonised  system  of  civil 
liability;
whereas  that  Directive  has  thus  helped  to  raise
awareness  among  traders  of  the  issue  of  product
safety  and  the  importance  accorded  to  it;

facilitating 

the 

(1)  Whereas  product 

and 

compensation
safety 
for  damage  caused  by  defective  products  are
social  imperatives  which  must  be  met  within  the
internal  market;  whereas  the  Community  has
responded  to  those  requirements  by  means  of
Directive  85/374/EEC (4)  and  Council  Directive

(1)  OJ  C  337,  7.11.1997,  p.  54.
(2)  OJ  C  95,  30.3.1998,  p.  69.
(3)  Opinion  of  the  European  Parliament  of  5  November  1998
(OJ  C  359,  23.11.1998),  Council  common  position  of  17
December 1998, and Decision of the European Parliament of
. . .  (not  yet  published  in  the  Official  Journal).

(4)  OJ  L  210,  7.8.1985,  p.  29.  Directive  as  amended  by  the

(3)  Whereas  the  degree  of  harmonisation  of  Member
States’  law  achieved  by  Directive  85/374/EEC  is
not  complete  in  view  of  the  derogations  provided
for,  in  particular  with  regard  to  its  scope,  from
which  unprocessed  agricultural  products  are
excluded;

1994  Act  of  Accession.

(5)  OJ  L  228,  11.8.1992,  p.  24.

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EN

Official  Journal  of  the  European  Communities

22.2.1999

(4)  Whereas 

and 

effects 

the  Commission  monitors 

the
implementation 
of  Directive
85/374/EEC and in particular its aspects relating to
consumer  protection  and  the  functioning  of  the
internal  market,  which  have  already  been  the
subject  of  a  first  report;  whereas,  in  this  context,
the  Commission  is  required  by  Article  21  of  that
Directive  to  submit  a  second  report  on 
its
application;

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

(6)  Whereas 

call 

circumstances 

for  Directive
85/374/EEC  to  be  amended  in  order  to  facilitate,
legitimate
for 
compensation  for  damage  to  health  caused  by
defective  agricultural  products;

consumers, 

benefit 

the 

of 

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

(8)  Whereas the principle of liability without fault laid
down  in  Directive  85/374/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  those  listed  in
Annex  II  to  the  said  Treaty;

(9)  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  shall  be  replaced  by  the  following:

‘Article  2

For  the  purpose  of  this  Directive,  “product”  means
all  movables  even 
into  another
movable  or  into  an  immovable.  “Product”  includes
electricity.’

incorporated 

if 

2.

In  Article  15,  paragraph  1(a)  shall  be  deleted.

Article  2

1. Member  States  shall  adopt  and  publish  the  laws,
regulations  and  administrative  provisions  necessary  to
comply  with  this  Directive.  They  shall  forthwith  inform
the  Commission  thereof.

They  shall  apply  these  measures  as  from  (. . .) (*).

When  the  Member  States  adopt  these  measures,  they
shall  contain  a  reference  to  this  Directive  or  shall  be
accompanied  by  such  reference  on  the  occasion  of  their
official  publication.  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  date  of  its
publication  in  the  Official  Journal  of  the  European
Communities.

Article  4

This  Directive  is  addressed  to  the  Member  States.

Done  at  . . .

For  the  European  Parliament

For  the  Council

The  President

The  President

(*) 18  months  after  the  entry  into  force  of  this  Directive.

22.2.1999

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Official  Journal  of  the  European  Communities

C  49/3

STATEMENT  OF  THE  COUNCIL’S  REASONS

I. 

INTRODUCTION

1.  On  2  October  1997  the  Commission  submitted  to  the  Council  a  proposal  for  a
Directive,  based  on  Article  100a  of  the  EC  Treaty,  amending  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.

2.  The  Economic  and  Social  Committee  delivered  its  opinion  on  29  January  1998.

The  European  Parliament  delivered  its  opinion  on  5  November  1998.

3.  The  Council  adopted  its  common  position,  in  accordance  with  Article  198b  of  the

Treaty,  on  17  December  1998.

II.  OBJECTIVES

The  aim  of  the  proposal  is  to  extend  the  producer’s  liability  without  fault  for  defective
products to cover primary agricultural products and game, which were not covered by the
provisions  of  Directive  85/374/EEC.

Following the proceedings of the Temporary Committee of Inquiry into BSE, the European
Parliament recommended that Directive 85/374/EEC be amended by September 1997 at the
latest,  in  order  to  cover  primary  agricultural  products  as  well.

The proposal seeks to achieve the two-fold objective of increasing consumer protection, as
mentioned  in  the  Luxembourg  European  Council’s  declaration  on  food  safety,  and  of
strengthening  the  internal  market  by  removing  distortions  of  competition,  by  maintaining
the  balance  between  consumers’  and  producers’  interests  and  by  increasing  legal
certainty.

III.  ANALYSIS  OF  THE  COMMON  POSITION

The  European  Parliament  proposed  eight  amendments.  These  were  not  adopted  by  the
Commission given that Directive 85/374/EEC was due for a detailed review in the context
of  the  next  report  which  the  Commission  was  required  to  submit  to  the  European
Parliament  and  the  Council  in  the  year  2000.

The  Council  did  not  consider  it  necessary  to  adopt  the  amendments  suggested  by  the
European  Parliament  and  approved  the  Commission  proposal  without  amendment.