Source: EURLEX
Language: en
Format: md

No C 12/8 Official Journal of the European Communities 18. 1.91

## II

_(Preparatory Acts)_

# COMMISSION

Proposal for a Council Directive on the liability of suppliers of services

_COM(90) 482 final — SYN 308_

_(Submitted by the Commission on 9 November_ _1990)_

(91/C 12/11)

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

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

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and
Social Committee,

Whereas the Council Resolution of 9 November 1989

stressed the priority nature of the implementation at
Community level of means of promoting the safety of
services as part of the relaunching of the consumer
protection policy;

Whereas there is a Community dimension to the market
in services;

Whereas, although the laws of the Member States
concerning the liability of the suppliers of services for the
damage caused by their services all seek to provide
greater protection for persons for whom the services are
intended and for third parties, they continue to differ in
content and as regards the degree of protection
provided; whereas such differences may create barriers
to trade and unequal conditions in the internal market in
services; whereas they do not guarantee the same degree
of protection for the injured person against all damage
caused to the person, nor to the consumer against
damage caused to movable or immovable property by a
service;

Whereas action at Community level is the most appropriate in view of these divergences and the Community
dimension of services;

Whereas the principle of reversing the burden of proof
of a fault on the part of the supplier of the defective
service is the most suitable in view of the level of

protection afforded by national law in the Member
States; whereas such a principle already exists in several

national legislations, but should be formalized and
applied in a standard manner;

Whereas the characteristics of services, including their
'one-off nature, which is sometimes intangible, the fact
that the service 'disappears' at the moment that damage
is caused, and the respective positions of the injured
person with no specific technical knowledge and the
trader who possesses such knowledge, justify a reversal
of the burden of proof of the fault on the part of the
supplier of the service in favour of the injured person;

Whereas a fault on the part of the supplier of the service
must be assessed in relation to the reasonable expectation
that the service should not cause damage to the physical
integrity of persons and of movable or immovable
property, including the persons or property which were
the object of the service;

Whereas the mere fact that a better service existed or

might have existed at the moment of performance or
subsequently does not constitute a fault;

Whereas, having regard to the diversity of services on
the one hand and the existence of Council Directive

85/374/EEC (*) concerning product liability on the
other, a broad definition of service should be adopted
based on the traditional distinction between service and

the manufacture of goods, services and the transfer of
rights _in rem;_ whereas, on account of their special
nature, public services intended to maintain public safety
should be excluded from this Directive; whereas package
travel services and waste services already governed by
specific Community legislation should also be excluded;
whereas the same applies for damage already covered by
liability arrangements governed by international
agreements ratified by the Member States or by the
Community;

Whereas the objective of protecting consumers and
compensating persons injured by defective services does
not justify a distinction between private and public
suppliers of services; whereas, however, only services
provided by commercial traders should be covered and
not those rendered by one individual to another;

(') OJ No L 210, 7. 8. 1985, p. 29.

18. 1.91 Official Journal of the European Communities No C 12/9

Whereas protection of the injured person requires
compensation for the damage to the health or physical
integrity of persons; whereas protection of the consumer
requires compensation for the damage to the physical
integrity of their movable or immovable property;
whereas any material damage resulting therefrom should
also be compensated for;

Whereas it falls to the injured person to provide proof of
the damage and of the causal relationship between that
damage and the service supplied;

Whereas the respective positions of the parties provide
justification that there be no reduction in the supplier's
liability where damage is caused jointly by the fault of
the supplier and the intervention of a third party, but
that such liability may be reduced (or even waived) in
the event of a joint fault on the part of the injured

person;

Whereas the protection of the injured person implies that
the supplier of the services should not be able to limit or
exclude his liability in relation to the former;

Whereas when liability for a given damage is shared by
several persons, protection of the injured person requires
that they have joint and several liability;

Whereas the position of the consumer with regard to the
franchisor giving his name to the services undertaking
and the franchisee to whom he applies justifies joint and
several liability of the franchisor, the franchisee and the
master franchisee;

Whereas this Directive is without prejudice to the
application of Council Directive 89/391 /EEC of 12 June
1989 on the introduction of measures to encourage
improvements in the safety and health of workers at
work ( [2] ) and the specific Directives deriving therefrom;

Whereas the system of liability established by this
Directive and the nature of the services justify reasonably
short limitation periods for bringing proceedings for the
recovery of damages and the termination of liability,
except where services relating to the design and
construction of immovable property are concerned,

O OJ No L 183, 29. 6. 1989, p. 1.

HAS ADOPTED THIS DIRECTIVE:

_Article 1_

Principle

1. The supplier of a service shall be liable for damage
to the health and physical integrity of persons or the
physical integrity of movable or immovable property,
including the persons or property which were the object
of the service, caused by a fault committed by him in the
performance of the service.

2. The burden of proving the absence of fault shall
fall upon the supplier of the service.

3. In assessing the fault, account shall be taken of the
behaviour of the supplier of the service, who, in normal
and reasonably foreseeable conditions, shall ensure the
safety which may reasonably be expected.

4. Whereas the mere fact that a better service existed

or might have existed at the moment of performance or
subsequently shall not constitute a fault.

_Article 2_

Definition of service

For the purpose of this Directive, 'service' means any
transaction carried out on a commercial basis or by way
of a public service and in an independent manner,
whether or not in return for payment, which does not
have as its direct and exclusive object the manufacture of
movable property or the transfer of rights _in rem_ or
intellectual property rights.

This Directive shall not apply to public services intended
to maintain public safety. It shall not apply to package
travel or to waste services.

Nor shall it apply to damage covered by liability
arrangements governed by international agreements
ratified by the Member States or by the Community.

_Article 3_

Definition of supplier of services

1. The term 'supplier of services' means any natural or
legal person governed by private or public law who, in
the course of his professional activities or by way of a
public service, provides a service referred to in Article 2.

2. Any person who provides a service by using the
services of a representative or other legally independent
intermediary shall continue to be deemed to be a supplier
of services within the meaning of this Directive.

N o C 12/10 Official Journal of the European Communities 18. 1.91

3. If the supplier of the service referred to in
paragraph 1 is not established within the Community,
and without prejudice to his liability, the person carrying
out the service in the Community shall be considered as
the supplier of that service for the purpose of this
Directive.

_Article 4_

Definition of damage

The term 'damage' means:

(a) death or any other direct damage to the health or
physical integrity of persons;

(b) any direct damage to the physical integrity of
movable or immovable property, including animals,
provided that this property:

(i) is of a type normally intended for private use or
consumption, and

(ii) was intended for or used by the injured person,
principally for his private use or consumption;

(c) any financial material damage resulting directly from
the damage referred to at (a) and (b).

_Article_ 5

Proof

The injured person shall be required to provide proof of
the damage and the causal relationship between the
performance of the service and the damage.

_Article 6_

Third parties and joint liability

1. The liability of the supplier of the service shall not
be reduced where the damage is caused jointly by a fault
on his part and by the intervention of a third party.

2. The liability of the supplier of the service may be
reduced, or even waived, where the damage is caused
jointly by a fault on his part and by the fault of the
injured person, or a person for whom the injured person
is responsible.

_Article 7_

Exclusion of liability

The supplier of a service may not, in relation to the
injured person, limit or exclude his liability under this
Directive.

_Article 8_

Joint and several liability

1. If, in applying this Directive, several people are
liable for a given damage, they shall be jointly liable,
without prejudice to the provisions of national law
relating to the law of recourse of one supplier against
another.

2. The franchisor, the master franchisee and the franchisee, within the meaning of Commission Regulation
(EEC) No 4087/88 of 30 November 1988 on the
application of Article 85 (3) of the Treaty to categories
of franchise agreements (*) shall be deemed to be jointly
and severally liable within the meaning of paragraph 1.

However, the franchisor and the master franchisee may
absolve themselves of liability if they can prove that the
damage is due to a product which, on the basis of Regulation (EEC) No 4087/88, they themselves had not been
able to supply or impose.

_Article 9_

Extinction of rights

The Member States shall provide in their legislation that
the rights conferred upon the injured person pursuant to
this Directive shall be extinguished upon the expiry of a
period of five years from the date on which the supplier
of services provided the service which caused the
damage, unless in the meantime the injured person has
instituted legal, administrative or arbitration proceedings
against that person.

However, this period shall be extended to 20 years
where the service relates to the design or construction of
immovable property.

_Article 10_

Limitation period

1. Member States shall provide in their legislation that
a limitation period of three years shall apply to
proceedings for the recovery of damages as provided for
in this Directive, beginning on the day on which the
plaintiff became aware or should reasonably have
become aware of the damage, the service and the
identity of the supplier of the service.

However, this period shall be extended to 10 years
where the service relates to the design or construction of
immovable property.

2. The laws of Member States regulating suspension
or interruption of the limitation period shall not be
affected by this Directive.

0) OJ No L 359, 28. 12. 1988, p. 46.

18. 1. 91 Official Journal of the European Communities No C 12/11

_Article 11_

Transitional provision

This Directive shall not apply to services provided before
the date on which the provisions referred to in Article
12 (1) enter into force.

_Article 12_

Implementing provisions

1. Member States shall adopt the laws, regulations
and administrative provisions necessary to comply with
this Directive by 31 December 1992.

They shall immediately inform the Commission thereof.

When Member States adopt these provisions, they shall
contain a reference to this Directive or shall be accompanied by such reference at the time of their official
publication. The procedure for such reference shall be
adopted by Member States.

2. Member States shall communicate to the
Commission the provisions of national law which they
adopt in the area governed by this Directive.

_Article 13_

Final provision

This Directive is addressed to the Member States.