REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Fourth report on the application of 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 amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999
Date: 2011-09-08
Institutions: European Commission
Subjects: application of EU law, case-law (EU), defective product, indemnification, producer's liability

EUROPEAN COMMISSION 

Brussels, 8.9.2011 
COM(2011) 547 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

Fourth report on the application of 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 amended by Directive 1999/34/EC of 
the European Parliament and of the Council of 10 May 1999  

(Text with EEA relevance) 

 
 
 
 
  
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

Fourth report on the application of 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 amended by Directive 1999/34/EC of 
the European Parliament and of the Council of 10 May 1999  

(Text with EEA relevance) 

EN 

1 

   EN 

 
CONTENTS 

1. 

2. 

3. 

INTRODUCTION........................................................................................................ 3 

THIRD REPORT ON THE APPLICATION OF DIRECTIVE 85/374/EEC: 2001-
2005.............................................................................................................................. 4 

APPLICATION OF DIRECTIVE 85/374/EEC: 2006 - 2010 ..................................... 4 

3.1. 

Judgments of the Court ................................................................................................ 5 

3.1.1.  Preliminary rulings (Article 267 TFEU) ...................................................................... 5 

3.1.2.  Direct actions (Articles 258 and 260 TFEU) ............................................................... 6 

3.2. 

3.3. 

4. 

Information provided by national experts and advisory groups................................... 6 

Other issues concerning the application of the Directive........................................... 10 

Conclusion.................................................................................................................. 10 

EN 

2 

   EN 

 
1. 

INTRODUCTION 

The  purpose  of  Directive  85/374/EEC  (hereinafter  “the  Directive”)1  is  to  approximate  the 
laws  of  the  Member  States  concerning  the  liability  of  the  producer  for  damage  caused  by 
defective products. The Directive introduces the principle of liability without fault on the part 
of the producer, whereby any producer of a defective movable must compensate any damage 
caused to the physical well-being or property of an individual, irrespective of whether or not 
there is negligence on the part of the individual.  

This Directive applies to any product2 marketed in the European Economic Area, i.e. in the 
Member  States  of  the  European  Union,  Norway,  Liechtenstein  and  Iceland.  It  provides  that 
compensation for material damage shall be limited to goods for private use and consumption 
with a 500 euro threshold. It sets out the period of limitation and forbids clauses limiting or 
excluding the liability of the producer. This Directive provides that the producer is exonerated 
if he proves the existence of certain facts, such as not having put the product into circulation, 
the defect being due to compliance of the product with mandatory regulations issued by the 
public  authorities,  or  the  state  of  scientific  or  technical  knowledge  at  the  time  when  the 
producer  put  the  product  into  circulation  not  allowing  him  to  detect  the  existence  of  the 
defect. 

Directive 85/374/EEC does not affect the rights of the injured party under legal provisions on 
contractual  or  non-contractual  liability  or  special  liability  arrangements  existing  at  the  time 
when  this  Directive  was  notified3.  Moreover,  it  shall  not  prejudice  compensation  for  non-
material damage pursuant to national legislative provisions.  

In  accordance  with  Article  21  of  the  Directive,  the  Commission  must  regularly  review  the 
effectiveness of the legal framework governing product liability. The Commission has already 
drawn up three reports on the application of this Directive4.  

This is the fourth  report  on  the  application of the Directive. It covers the period 2006-2010 
and  analyses  the  application  of  the  Directive  in  the  27  Member  States.  To  this  end,  the 
Commission sent a questionnaire to the Member States and the members of informal advisory 
groups  requesting  information,  in  particular  concerning  the  issues  raised  in  the  previous 
report. 

1 

2 

3 

4 

Council  Directive  85/374/EEC  of  25 July  1985  on  the  approximation  of  laws,  regulations  and 
administrative  provisions  of  the  Member  States  concerning  liability  for  defective  products  (OJ  L  21, 
7.8.1985, p. 29), amended by Directive 1999/34/EC of the European Parliament and of the Council of 
10 May 1999 (OJ L 141, 4.6.1999, p. 20) and corrigendum (OJ L 283, 6.11.1999, p. 20)  
Directive  99/34/EC  extended  the  scope  of  Directive  84/374/EEC  to  include  agricultural  and  fishery 
products. In contrast, nuclear energy is expressly excluded from the basic directive.  
The Court of Justice of the European Union has on a number of occasions ruled that the provisions laid 
down in the Directive do not preclude the application of other systems of contractual or non-contractual 
liability  based  on  other  grounds  (see,  for  example,  CJEC  judgment  of  10  January  2006  in  Case  C-
402/03, [2006] ECR I-199). 
COM(1995) 617, 13 December 1995. COM(2000)893 of 31 January 2001 and COM(2006) 496 of 14 
September 2006.  
(http://ec.europa.eu/enterprise/policies/single-market-goods/documents/liability/index_en.htm) 

EN 

3 

   EN 

 
                                                 
2. 

THIRD  REPORT  ON  THE  APPLICATION  OF  DIRECTIVE  85/374/EEC: 
2001-2005  

The  third  report  on  the  application  of  Directive  85/374/EEC  concluded  that  the  Directive 
managed to strike the balance between consumer interests and internal market policies. In its 
general conclusion, the report confirmed that the implementation of the Directive was on the 
whole satisfactory and that no amendments were necessary. Even if the application of national 
legislation sometimes led to discrepancies, these did not affect the functioning of the internal 
market.  

In order to intervene where discrepancies at national level require action at European Union 
level, the Commission proposed that the functioning of the Directive continue to be examined, 
in particular in respect of the impact of the provisions on the burden of proof, defences or the 
threshold of 500 euros for material damage sustained. 

3. 

APPLICATION OF DIRECTIVE 85/374/EEC: 2006 - 2010  

During 
implementation of the Directive in the Member States.  

in  question, 

the  period 

the  Commission  monitored 

the 

transposition  and 

In  most  Member  States,  the  national  provisions  implementing  the  Directive  are  generally 
applied alongside other regulations on contractual, non-contractual or other types of liability. 
The coexistence of different product liability rules, which is permitted under Article 13 of the 
Directive, is considered positive because the range of rules allows consumer protection to be 
improved.  

The  data  collected  for  the  drafting  of  this  report  show  that  some  Member  States,  including 
Austria,  France,  Germany,  Italy,  Poland  and  Spain,  recorded  an  increase  in  the  number  of 
product liability cases brought under national laws transposing the Directive. In some of the 
Member  States,  there  was  both  an  increase  in  the  absolute  number  of  cases  brought  on  the 
grounds  of  product  liability  in  the  last  few  years  and  an  increase  in  the  relative  use  of  the 
Directive against cases brought on the grounds of civil or contractual liability.  

The increase in the number of product liability cases brought in recent years is thought to be 
mainly due to external factors such as greater consumer awareness and better organisation of 
consumer groups or improved means of accessing information. In contrast, it would seem that 
the  costs  of  the  action  discourage  this  type  of  proceedings  in  some  Member  States,  for 
example the United Kingdom.  

This  having  been  said,  the  swift  resolution  of  a  case  brought  before  the  national  courts 
depends  on  the  thoroughness  and  effectiveness  of  national  systems  of  civil  law.  In  cases 
where liability is not called into question (i.e. the defect, damage and causal link are clear), 
these claims are settled out of court, which contributes to the injured party being compensated 
quickly for the damages sustained5.  

5 

Austria and Latvia, for example, have reported a number of out-of-court settlements, including a case 
where a baby fell off a baby-change table which had folded up (€ 1 500); burns to a person's legs after 
the handle broke off a fondue set (€ 2 500); pains and symptoms of poisoning after consuming a dish 

EN 

4 

   EN 

 
                                                 
3.1. 

Judgments of the Court 

The Court of Justice of the European Union (hereinafter “the Court”) has continued to specify 
the  arrangements  of  Directive  85/374/EEC  thus  contributing  to  removing  the  differences  in 
interpretation.  The  Court  has  repeatedly  ruled  on  the  linkage  of  this  Directive  to  national 
transposition  arrangements.  It  has  ruled  on  the  overall  degree  of  harmonisation  of  Directive 
85/374/EEC which prevents Member States from, for example, establishing more favourable 
arrangements  for  consumers  in  respect  of  the  period  of  limitation.  It  also  confirmed  that 
Member  States  are  free  to  maintain  different  systems  for  liability  and  for  strict  or  no-fault 
liability whereby the liability of intermediaries may be equivalent to that of the producer in 
the event of negligence or fault.  

Between 2006 and 2010 the Court handed down rulings on six occasions concerning Directive 
85/374/EEC.  On  two  occasions,  judgments  were  delivered  in  the  Court’s  second  referral 
procedure (Article 260 TFEU, ex Article 228 TEC). 

3.1.1.  Preliminary rulings (Article 267 TFEU) 

In Skov v Bilka Lavrishvareus6, the Court ruled that Directive 84/374/EEC must be interpreted 
as  precluding  national  rule  under  which  the  supplier  of  a  defective  product  is  answerable, 
beyond the cases listed exhaustively in Article 3(3) of that Directive, for the no-fault liability 
which  the  Directive  establishes  and  imposes  on  the  producer.  However,  the  Court  specified 
that  the  Directive  does  not  preclude  a  national  rule  under  which  the  supplier  is  answerable 
without restriction for the producer’s fault-based liability. 

In Declan O’Byrne v Sanofi7, the Court ruled on the notion of the “putting into circulation” of 
the product within the meaning of Article 11 of the Directive and when the limitation period 
of the liability action for defective products starts to run. It also specified that a product is put 
into  circulation  when  it  is  taken  out  of  the  manufacturing  process  operated  by  the  producer 
and enters a marketing process in the form in which it is offered to the public in order to be 
used or consumed. 

The  Court  again  clarified  its  interpretation  of  Article  11  of  the  Directive  in  the  Aventis 
Pasteur SA v OB8 judgment, ruling that this article must be interpreted as precluding national 
legislation,  which  allows  the  substitution  of  one  defendant  for  another  during  proceedings, 
from being applied in a way which permits a “producer”, within the meaning of Article 3 of 
that Directive, to be sued, after the expiry of the period prescribed by that article, as defendant 
in proceedings brought within that period against another person. However, it then made clear 
that Article 11 must be interpreted as not precluding a national court from holding that, in the 
proceedings  instituted  within  the  period  prescribed  by  that  article  against  the  wholly  owned 
subsidiary  of  the  “producer”,  within  the  meaning  of  Article  3(1)  of  Directive  85/374,  that 
producer  can  be  substituted  for  that  subsidiary  if  the  court  finds  that  the  putting  into 
circulation of the product in question was, in fact, carried out by that producer.  

containing millet contaminated by thorn apple seeds (€ 1 000), or serious injury following a fall from a 
defective armchair (€ 5 000).  
CJEU - Judgment of 10 January 2006 in Case C-402/03 [2006] ECR I-199. 
CJEU - Judgment of 9 February 2006, Case C-127/04 [2006] ECR I-1313. 
CJEU - Judgment of 2 December 2009, Case C-358/08 [2009] ECR I-11305. 

6 
7 
8 

EN 

5 

   EN 

 
                                                                                                                                                         
Lastly,  the  Court  also  provided  further  information  regarding  the  supplier’s  liability.  In  that 
respect,  Article  3(3)  of  the  Directive  must  be interpreted as meaning that, where the person 
injured by an allegedly defective product was not reasonably able to identify the producer of 
that product before exercising his rights against the supplier of that product, that supplier must 
be treated as a “producer” for the purposes, in particular, of the application of Article 11 of 
that Directive, if it did not inform the injured person, on its own initiative and promptly, of the 
identity of the producer or its own supplier. 

In Moteurs Leroy Somerc v Dalkia France9, the Court of Justice ruled that the Directive must 
not be interpreted to mean that it does not preclude the interpretation of domestic law or the 
application  of  settled  domestic  case-law  according  to  which  the  injured  party  may  seek 
compensation for damage to an item of property intended for professional use and employed 
for that purpose where that injured party simply proves the damage, the defect in the product 
and the causal link between that defect and the damage. 

3.1.2.  Direct actions (Articles 258 and 260 TFEU)  

In  its  judgment  of  25 April  2002  in  Commission  v  French  Republic10,  the  Court  noted  that 
France  had  failed  to  correctly  transpose  Directive  85/374/EEC.  Given  that  the  Court’s 
judgment had only been partially implemented, the Commission had brought a second referral 
procedure under Article 260 of the TFEU (ex Article 228 TEC).  

Its decision of 14 March 2006 in Commission v French Republic11, the Court concluded that 
by continuing to regard the supplier of a defective product as liable on the same basis as the 
producer where the producer cannot be identified, even though the supplier has informed the 
injured party within a reasonable time of the identity of the person who supplied him with the 
product, the French Republic had not taken the all necessary implementing measures set out 
in  the  judgment  of  25 April  2002  as  regards  the  transposition  of  Article  3(3)  of  Directive 
85/374/EEC. The Court ordered the French Republic to comply with the Directive and pay a 
penalty of 31 650 euros for each day of delay in taking the necessary measures to ensure full 
compliance with the judgment of 25 April 2002, as from the date of the delivery of the new 
judgment.  France,  which  had  to  pay  a  penalty  amounting  to  a  total  of  795 600  euros,  fully 
complied with the new judgment.  

In a judgment of 5 July 2007, Commission v Kingdom of Denmark12, the Court deemed that 
the Kingdom of Denmark had failed to fulfil its obligations in respect of the transposition of 
Directive  85/374/EEC  by  adopting  and  maintaining  in  force  provisions  which  made 
intermediaries  in  the  distribution  chain  liable  under  the  same  conditions  as  a  manufacturer, 
contrary  to  Article  3(3)  of  that  Directive.  Following  this  Decision,  Denmark  took  the 
necessary measures to bring its legislation into line with the Directive. 

3.2. 

Information provided by national experts and advisory groups 

Using  the  same  methodology  as  for  the  third  report,  the  Commission  invited  the  national 
authorities and interested parties who are members of the informal advisory groups to express 

9 
10 
11 
12 

CJEU - Judgment of 4 June 2009, Case C-285/08 [2009] ECR I-4733. 
CJEU - Judgment of 25 April 2002, Case C-52/00 [2002] ECR I-3827. 
CJEU - Judgment of 14 March 2006, Case C-177/04 . [2006] ECR I-2461. 
CJEU - Judgment of 5 July 2007, Case C-327/05 [2007] ECR I-93. 

EN 

6 

   EN 

 
                                                 
 
their  opinions  on  the  application  and  effectiveness  of  the  Directive  during  the  reference 
period. The task was to assess the practical impact of the Directive and the issues raised in the 
previous report, the different interpretations of which by national courts could at times lead to 
differences in the application of the Directive from one Member State to another.  

This  report  summarises  the  data  collected  by  the  Commission  in  particular  concerning  the 
burden of proof, defence of regulatory compliance, development risk defence and the question 
of the 500 euro threshold for material damage. 

– 

Burden of proof (Article 4) 

Directive  85/374/EEC  provides  that  the  burden  of  proof  for  damage,  the  defect  and  causal 
relationship between the two lies with the injured party. The purpose of this Directive is not to 
harmonise  Member  States’  national  procedural  rules,  which  vary  not  only  as  regards 
substantive law, but also the standard of proof required. 

The  Lovells  study  on  product  liability  in  the  European  Union13  and  the  Commission’s  third 
report on the application of the Directive already pointed out that case-law in this area varied; 
there  were  differences  between  the  decisions  of  various  Member  States  and  even  between 
decisions of the courts within a single Member State. 

In  the  light  of  the  information  available,  we  also  note  differences  in  terms  of  the  evidence 
needed to prove a defect. In some courts, for example, in Belgium, France, Italy or Spain, it is 
enough for the plaintiff to prove that the product did not fulfil the function for which it was 
intended.  In  other  countries,  such  as  Germany  or  the  United  Kingdom14,  the  plaintiff  must 
prove  the  precise  nature  of  the  product’s  defect  in  more  detail.  The  same  information  also 
shows  that  the  Austrian  Supreme  Court  has  developed  a  body  of  settled  case-law  which 
reconciles these two positions. 

Some  national  authorities  (including  those  of  Bulgaria,  Italy,  Malta,  Latvia,  Slovakia  or 
Sweden)  are,  however,  of  the  opinion  that  injured  parties  face  considerable  difficulties  in 
proving that the damage was caused by the product’s defect. Such difficulties are mainly due 
to the costs involved in obtaining an expert opinion. In order to overcome this problem, some 
Member States believe that the Directive should be amended so as to include a presumption of 
the producer’s liability or a mechanism to reverse the burden of proof. 

This  provision  continues  to  be  a  bone  of  contention  between  the  representatives  of  the 
interested parties (consumers, producers, suppliers, insurers or legal practitioners). Consumers 
emphasise  the  difficulty,  in  particular  due  to the  economic  costs,  of  furnishing  proof  of  the 
defect  of  certain  highly  technical  products  as  well  as  proving  the  causal  link  between  the 
defect and the damage when such damage is complex in nature. In order to better guarantee 
consumer protection, they believe the burden of proof should be reversed.  

13 

14 

Lovells. Product liability in the European Union – A report for the European Commission – (The 
Lovells Report) 2003.  
(http://ec.europa.eu/enterprise/policies/single-market-goods/documents/liability/index_en.htm). 
Nevertheless,  the  English  Court  of  Appeal  ruled  that  the  appellant  did  not  have  to  prove  the  precise 
mechanism  by  which  the  product  was  defective  in  order  to  establish  the  producer’s  liability  in  Ide  v. 
ATB sales (2008, WECA Civ 424).  

EN 

7 

   EN 

 
                                                 
As for the producers and insurers, they believe that the requirement to prove the causal link 
between  the  damage  and  the  product’s  defect  is  fundamental  to  the  balance  between 
producers’ interests and consumer interests guaranteed under the Directive. They also believe 
that relaxing the rules for the burden of proof would encourage consumers to take legal action 
for minor damage. According to legal practitioners, plaintiffs are able to establish the causal 
link  between  the  defect  and  damage  on  the  basis  of  the  rules  of  evidence  in  the  various 
Member States. This is proved by the increasing number of claims for compensation arising 
from a defective product. 

– 

Defence of regulatory compliance (Article 7(d)) 

Directive  85/374/EEC  establishes  that  the  producer  shall  not  be  liable  if  he  proves  that  the 
defect  is  due  to  compliance  of  the  product  with  mandatory  regulations  issued  by  the  public 
authorities.  

On the basis of the information available, the Commission notes that there is very little case-
law  on  this  ground  of  defence.  In  this  connection,  the  Hungarian  authorities  have  indicated 
that  this  type  of  case  mainly  relates  to  vehicles  and  medical  products.  In  the  first  instance, 
Hungarian  case-law  rarely  establishes  the  producer’s  liability  pursuant  to  the  national  law 
transposing the Directive, but as regards medicines and other medical products (in particular 
blood  products),  the  producer’s  liability  is,  as  a  general  rule,  decided  on  by  the  courts. 
According to the Slovak authorities, consumers rarely exercise their rights to compensation in 
this  context.  They  usually  request  other  rights  be  enforced,  such  as  the  right  to  withdraw, 
request a discount on the purchase price or have the defect repaired. 

The representatives of the pharmaceutical industries in Europe take the view that the liability 
system  laid  down  in  the  Directive  does  not  sufficiently  take  into  account  the  fact  that  the 
medicinal products  sector is very strictly regulated. In  their  opinion, the fact that the use of 
medicine  is  generally  subject  to  external  examination  by  health  professionals  (including 
doctors, nurses or pharmacists) and that the producer does not have any control over the way 
in  which  medicines  are  prescribed  or  administered  should  be  taken  into  account  when 
analysing the defect of the product and the producer’s liability. 

– 

Development risk defence (Article 7(e)) 

Directive 85/374/EEC provides that the producer’s liability is not affected when the state of 
technical knowledge at the time when he put the product into circulation was not such as to 
enable  the  defect  to  be  discovered.  On  this  point,  the  Member  States  are  permitted  to  take 
measures by way of derogation15.  

According to the information available, the Commission notes that national courts differ as to 
whether this defence applies to all types of defect. For example, the German Supreme Court 
ruled that Article 7(e) never applies to manufacturing defects. Other courts, for example in the 
Netherlands and the United Kingdom, disagree with this interpretation. Furthermore, despite 
the  judgment  of  the  Court  of  Justice  of  the  European  Union  in  Commission  v  United 

15 

Fondazione Rosselli. Analysis of the Economic Impact of the Development Risk Clause as provided for 
by Directive 85/374/EEC on liability for defective products. 2004. According to this report, only 
Finland and Luxembourg have excluded this defence from their legislation. 
(http://ec.europa.eu/enterprise/policies/single-market-goods/documents/liability/index_en.htm). 

EN 

8 

   EN 

 
                                                 
Kingdom16,  there  still  seems  to  be  some  doubt  as  to  the  way  in  which  the  courts  should 
interpret the clause “the state of scientific and technical knowledge at the time when he put the 
product  into  circulation  was  not  such  as  to  enable  the  existence  of  the  defect  to  be 
discovered”. 

Based  on  the  above-mentioned  information,  the  Austrian  Supreme  Court  ordered  that  this 
liability exclusion clause may apply to a situation in which a certain risk has been discovered 
only by the expert appointed by the court through a series of tests as part of proceedings, and 
which was not known to the experts prior to the start of proceedings and the marketing of the 
product. 

Today,  some  Member  States  have  also  shifted  liability  for  development  risks  onto  the 
producer.  For  example,  in  Finland  and  Luxembourg  this  liability  applies  to  all  types  of 
product. In Spain, this defence does not apply in actions brought for pharmaceutical products 
and foodstuffs intended for human consumption. In other countries, this clause does not apply 
to certain products and under certain circumstances (for example, in France). 

Some national authorities (including those in Bulgaria and Malta) believe that the provision 
laid  down  in  Article  7(e)  of  the  Directive  needs  to  be  reviewed  in  order  to  remove  this 
exclusion of liability. In their opinion, removing this defence would contribute to the internal 
market  functioning  better.  Other  authorities  (including  those  in  Greece,  Italy,  Lithuania  and 
the  United  Kingdom)  believe  that  this  clause  contributes  to  maintaining  a  balance  between 
encouraging the putting into circulation of innovative products and consumer protection as it 
reduces  the  insurance  costs  for  companies.  This  defence  encourages  technical  and  scientific 
innovation without, however, increasing the final cost of the products. 

Representatives  of  the  industry  and  insurance  companies  believe  that  the  exclusion  of  this 
defence  would  slow  down  innovation  and  the  development  of  new  products  and  increase 
insurance costs. In their opinion, the fact that this exclusion has not had any significant impact 
in  either  Luxembourg  or  Finland  is  due  to  the  size  of  the  markets.  However,  consumer 
representatives would be in favour of removing this liability exclusion clause. They stress that 
strict liability is based on the principle that persons making a profit from dangerous activities 
must compensate for damage caused. The producer should therefore be held liable even if the 
damage sustained is the result of a risk that was impossible to detect.  

Some  representatives  from  pharmaceutical  companies  criticise  the  position  taken  in  French 
case-law whereby development risk for identical products put into circulation between 1988 
and  1998  (date  of  the  transposition  legislation)  may  not  be  invoked.  Their  view  is  that  this 
position is not in line with the Directive in that the ground for exclusion from liability cannot 
be accepted or rejected depending on the date of the putting into circulation of products that 
are identical. 

– 

500 euro threshold (Article 9) 

Directive  85/374/EEC  applies  to  damage  caused  to  an  item  that  is  for  private  use  or 
consumption other than the defective product itself and with a lower threshold of 500 euros. 
The third report noted that this threshold was interpreted in different ways by national courts.  

16 

CJEU - Judgement of 29 May 1997, C-300/95 [1997] ECR I-2649. 

EN 

9 

   EN 

 
                                                 
Some  national  authorities  are  now  expressing  a  certain  preference  for  reducing,  or  even 
removing,  the  threshold  in  order  to  guarantee  more  effective  consumer  protection.  In 
particular,  the  Romanian  authorities  suggested  setting  a  threshold  of  between  200  and  500 
euros  and  allowing  Member  States  to  fix  the  amount  that  best  matches  the  prices  in  their 
respective countries. 

As regards the parties concerned, the representatives of the industry believe that the current 
threshold  should  at  least  be  maintained  in  order  to  establish  the  compensation  for  strict 
liability  from  a  given  level  of  damage  and  to  avoid  a  pile-up  of  claims  for  minor  material 
damage,  in  particular  those  filed  against  small  and  medium-sized  enterprises.  Furthermore, 
they  believe  that  this  threshold  should  be  raised  in  order  to  match  it  to  inflation.  Consumer 
representatives are calling for the threshold to be removed in order to allow compensation for 
all material damage sustained. 

3.3. 

Other issues concerning the application of the Directive  

– 

Access to the courts  

Directive 85/374/EEC does not contain specific provisions in respect of access to the courts 
for injured parties. Injured parties have to use national legal solutions. 

The Commission recalls that the development of the internal market requires easy access for 
consumers to the courts in cross-border cases. 

In this context, substantial progress has been made in the field of judicial cooperation in civil 
matters, in particular as regards alternative dispute resolution and procedures for small claims.  

– 

Collection and exchange of information 

Since 2001, the Commission has had a group of national experts (Expert group on liability for 
defective products) which assists it in collecting information that is useful and/or necessary to 
check  whether  the  Directive  operates  in  a  satisfactory  manner  and,  if  not,  to  examine  the 
problems identified. This group has not met since 2004. Most Member States believe that it is 
not necessary to hold periodic meetings to exchange information, but rather feel that the group 
should meet if the need for a specific discussion arises. However, the new Member States are 
on the whole in favour of having regular meetings to exchange information.  

As regards the collection of information, the Product Liability Forum of the British Institute 
of International and Comparative Law has a database on liability for defective products. This 
database  can  be  accessed  online  and  contains  information  regarding  legislation  and  judicial 
decisions concerning Directive 85/374/EEC in all Member States17. 

4. 

CONCLUSION 

Directive 85/374/EEC is not aimed at fully harmonising all aspects of legislation on liability 
arising  from  defective  products  in  the  EU.  Moreover,  the  Court  of  Justice  of  the  European 

17 

www.biicl.org/plf 

EN 

10 

   EN 

 
                                                 
Union,  through  its  case-law,  makes  a  key  contribution  towards  defining  the  scope  of  this 
Directive and ensuring its correct and uniform implementation.  

In the light of the information available, the situation regarding the application of Directive 
85/374/EEC is similar to that stated in the previous report. It would, however, seem that the 
number of liability claims made on the basis of the Directive has increased in some Member 
States,  moreover,  there  has  been  an  increase  in  the  number  of  out-of-court  settlements  for 
compensation reached between the injured party and the person who caused the damage. 

In general, the Directive is seen as achieving a balance between consumer protection and the 
producers’  interests.  Most  contributions  to  this  report  confirm  the  fact  that  Directive 
85/374/EEC is an instrument that offers the real possibility of filing a claim for  appropriate 
remedy and compensation for damage caused by a defective product.  

On  the  whole,  national  experts  and  interested  parties  recognise  the  importance  of  having  a 
balanced liability instrument governing relationships between companies and consumers and 
feel  that  the  Directive  strikes  this  balance  by  reconciling  the  said  interests.  However,  the 
interested parties also have differing opinions about the Directive as regards the effectiveness 
of certain provisions, in particular those concerning the burden of proof, defence of regulatory 
compliance, the development risk defence or the 500 euro threshold. Overall, however, these 
differences had already been noted in the previous report.  

In  general,  consumers  would  like  more  protection  at  a  lower  cost,  which  would  mean,  for 
example,  removing  the  threshold.  In  contrast,  producers  and  insurers  mention  the  risk  of 
increasing the number of claims for minor damages and are therefore in favour of increasing 
the threshold. These two differing stances are also reflected among the national experts.  

It  would  therefore  seem  that  Directive  85/374/EEC  contributes  to  maintaining  the  balance 
between  the  producers’  interests  and  consumer  interests  as  regards  liability  for  defective 
products.  The  Commission  takes  the  view  that  the  differences  that  may  arise  do  not  create 
significant  trade  barriers  or  distort  competition  in  the  European  Union.  In  particular,  the 
Commission  believes  that  injured  parties  can  establish  the  causal  link  in  cases  where  a 
defective product causes damage irrespective of the differences between national procedural 
rules. Similarly, it also noted that, from the information available on the impact of provisions 
for defences or the 500 euro threshold, it is possible to conclude that the Directive provides a 
common  level  of  consumer  protection  and  a  common  basis  for  the  producers’  liability  for 
defective products. 

Taking into account that the information available is not sufficiently fact-based and that any 
amendment to one or more provisions has an effect on the overall balance of this Directive, 
the Commission is of the opinion that it is premature to propose a review of the Directive at 
this stage.  

Between  now  and  the  next  report,  the  Commission  will  follow  any  development  likely  to 
affect  the  balance,  where  necessary  using  an  in-depth  evaluation  involving  national  experts 
and interested parties, in order to identify the problems and find solutions that are acceptable 
to the majority of stakeholders. 

EN 

xxx 

11 

   EN 

 
The  Commission  would  ask  the  European  Parliament,  the  Council  and  the  European 
Economic and Social Committee to take note of this report. 

EN 

12 

   EN