Council Resolution of 19 December 2002 on amendment of the liability for defective products Directive
Date: 2002-12-19
Institutions: Council of the European Union
Subjects: approximation of laws, consumer protection, defective product, producer's liability, product safety

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Official Journal of the European Union

4.2.2003

The Council acknowledges the projected improvement in the
underlying balance by more than 0,5 % of GDP per year up to
the new programme's horizon, with the exception of 2005 due
to the introduction of tax reforms; it notes that in underlying
terms the government accounts would at least be close to
balance by 2006. It is recalled, however that this adjustment
path hinges on the full
the announced
measures, the respect of agreed expenditure targets for 2003
and 2004 and an agreement on ambitious expenditure targets
for 2005 and 2006. The Council urges the German authorities
to ensure that the implementation of the next steps of tax
reform in 2004 and 2005 is compatible with a continuous
adjustment path towards overall budget balance.

implementation of

the
the confirmation of

The Council notes that this should lead to a balanced budget
by 2006, although this is two years later than planned in last
stability programme. The Council
year's update of
the 2006 target by the
welcomes
(financial planning council) of 27
German Finanzplanungsrat
November 2002. It urges the federal and regional authorities
to agree on ambitious expenditure targets for 2005 and 2006
and to ensure strict budgetary implementation at all levels of
government. As shown by budgetary developments in the past,
in order to attain the projected deficit
this will be crucial
targets, especially once growth recovers. While the Council
welcomes
the
(advanced)
revised law on budgetary procedures (Haushaltsgrundsätzegesetz),
the Council reiterates its view that the mechanism enshrined
therein is not yet sufficient to guarantee compliance with mu-
tually agreed objectives by all levels of government.

implementation of

recent

the

The Council takes note of the German authorities' intentions to
bring the debt level down below the Treaty's reference value by
2005 but notes that these intentions are subject to a number of
risks. Therefore the development of the debt ratio remains a
source of concern given the need to ensure the sustainability of
public finances. On the basis of current policies, the risk of
unsustainable public finances in light of ageing populations
cannot be excluded. If debt reduction is to make a noticeable
contribution towards meeting the budgetary cost of ageing
then reaching a balanced budget position by
populations,
2006 is essential; this should be part of an ambitious three-
pronged strategy to meet
the long-term budgetary conse-
quences of ageing and may have to include the running of
surpluses. Running sound public finances over the long run
will allow to achieve a significant reduction in the debt ratio
prior to the budgetary impact of ageing populations taking
hold.

again that

The Council considers it to be indispensable that fiscal consoli-
dation, in order to prove sustainable, should be underpinned
by far-reaching reforms to raise Germany's very low growth
potential. The Council
the German
stresses
economy, despite its large size, remains highly vulnerable to
external shocks and unable to generate an endogenous and
durable growth process. While acknowledging that this still
partially reflects the economic consequences of German unifi-
cation, the Council reiterates the need for urgent reforms not
only in the labour market, but also in social security and
benefit systems in general, and for a reduction in the regulatory
burden of the economy.

COUNCIL RESOLUTION

of 19 December 2002

on amendment of the liability for defective products Directive

(2003/C 26/02)

THE COUNCIL OF THE EUROPEAN UNION,

RECALLING THAT:

1. 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), as amended by European Parliament
and Council Directive 1999/34/EC of 10 May 1999 (2),
seeks to achieve an approximation of
the
Member States concerning the liability of the producer for
damage caused by the defectiveness of his products because
the existing divergences may distort competition and affect
the movement of goods within the common market and
entail a differing degree of protection of
the consumer
to his
against damage caused by a defective product
health or property. To provide an adequate solution to

the laws of

(1) OJ L 210, 7.8.1985, p. 29.
(2) OJ L 141, 4.6.1999, p. 20.

the problem, peculiar to our age of increasing technicality,
of a fair apportionment of the risks inherent in modern
the Directive imposes liability
technological production,
on the producer without
for damage
fault on his part
caused by the defectiveness of his products.

2. The producer is considered to be the manufacturer of a
finished product, the producer of any raw material or the
manufacturer of a component part and any person who, by
putting his name, trade mark or other distinguishing feature
on the product, presents himself as the producer, cf. Article
3(1) of the Directive. Without prejudice to the liability of
the producer, any person who imports into the Community
a product for sale, hire, leasing or any form of distribution
in the course of his business shall be deemed to be a
producer and shall be responsible as a producer, cf.
Article 3(2) of the Directive.

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Official Journal of the European Union

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3. Where the producer or the importer of the product cannot
be identified, each supplier of the product shall be treated as
its producer unless he informs the injured person, within a
reasonable time, of the identity of the producer or the
the person who supplied him with the
importer or of
product, cf. Article 3(3) of the Directive. Apart from this
specific Article
contains no provisions
concerning the liability of the supplier.

the Directive

4. At the time of the adoption of the Directive (Session 1025
of the Council, 25 July 1985), the following joint statement
of the Council and the Commission concerning the scope of
the Directive was inserted in the Council minutes:

‘With regard to the interpretation of Articles 3 and 12, the
Council and the Commission are in agreement that there is
nothing to prevent individual Member States from laying
legislation rules regarding liability
down in their national
for
intermediary liability is not
intermediaries,
covered by the Directive. There is further agreement that
under the Directive the Member States may determine rules
on the final mutual apportionment of
liability among
several liable producers (see Article 3) and intermediaries.’

since

At the same time the following statement was inserted in
the Council minutes concerning the understanding of
Article 3(3):

‘The Council notes that
the word “supplier” within the
meaning of Article 3(3) means the person who operates
in the chain of distribution.’.

5. In a judgment of 25 April 2002 (case C-52/00) the Court of
Justice of the European Communities established that the
Directive seeks to achieve,
in the matters regulated by it,
complete harmonisation of the laws, regulations and admin-
also
the Member States
istrative provisions of
the same date in cases C-154/00 and
judgments of
Justice also estab-
C-183/00). Furthermore,

the Court of

(see

in case C-52/00 that

legislation
lished
providing that the supplier of a defective product is to be
liable in all cases and on the same basis as the producer
constitutes a violation of the Directive.

a national

6. Thus, it seems that Member States may no longer lay down
rules on liability of suppliers, i.e. persons who operate in
the chain of distribution, based on the same ground as the
liability system in the Directive concerning liability of
producers. Except for cases provided for in Article 3(3) a
system of
liability
therefore seems to be precluded.

liability of suppliers based on strict

7. This legal situation gives rise to concern, since as pointed
out
from
in paragraph 3 the Directive does not, apart
Article 3(3), contain provisions concerning the liability of
the supplier.

8. The possibility to lay down rules on liability of suppliers,
including rules on strict liability, could involve benefits to
the consumers, regardless of whether these rules are laid
down at national or Community level.
In relevant cases
the consumer would then be able to raise his claim
against the producer, subsequent suppliers,
including the
the product, or them all. This could improve
seller of
consumer's possibility of actually obtaining compensation.

The Council also recalls that one of the general objectives of
the Community is to promote consumer
interests and
ensure a high level of consumer protection, cf. Articles 95
and 153 of the Treaty.

9. THE COUNCIL CONSIDERS that against this background there
is a need to assess whether Directive 85/374/EEC, as
amended by Directive 1999/34/EC, should be modified in
such a way as to allow for national rules on liability of
suppliers based on the same ground as the liability system
in the Directive concerning liability of producers.

COUNCIL OPINION

of 21 January 2003

on the updated stability programme of Greece, 2002 to 2006

(2003/C 26/03)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the recommendation of the Commission,
after consulting the Economic and Financial Committee,

Having regard to the Treaty establishing the European
Community,

HAS DELIVERED THIS OPINION:

Having regard to Council Regulation (EC) No 1466/97 of 7
July 1997 on the strengthening of the surveillance of budgetary
positions and the surveillance and coordination of economic
policies (1), and in particular Article 5(3) thereof,

(1) OJ L 209, 2.8.1997.

On 21 January 2003 the Council examined the 2002 update of
the stability programme of Greece, which covers the period
2002 to 2006. The
the
requirements of
the code of conduct on the content and
format of the programmes endorsed by the Ecofin Council
on 10 July 2001. The programme partly conforms with the
recommendations of the BEPGs.

conforms with

programme