CELEX: 51979PC0415
Language: en
Date: 1979-09-19
Title: AMENDMENT OF THE PROPOSAL FOR A COUNCIL DIRECTIVE RELATING TO THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES CONCERNING LIABILITY FOR DEFECTIVE PRODUCTS

26. 10.79                           Official Journal of the European Communities                                N o C 271/3
                                                              II
                                                      (Preparatory Acts)
                                                COMMISSION
              Amendment of the proposal for a Council Directive relating to the approximation of the
              laws, regulations and administrative provisions of the Member States concerning liability
                                                  for defective products ( l )
              (Submitted by the Commission to the Council on 1 October 1979 pursuant to Article 149 (2)
                                                     of the EEC Treaty)
                     ORIGINAL TEXT                                                   AMENDED TEXT (')
T H E COUNCIL OF T H E EUROPEAN                                   unchanged
COMMUNITIES,
 Having regard to the Treaty establishing the
 European Economic Community, ahd in particular
Article 100 thereof,
 Having regard to the proposal from the Commission,
 Having regard to the opinion of the European Par-
 liament,
 Having regard to the opinion of the Economic and
 Social Committee,
 Whereas the approximation of the laws of the                     unchanged
 Member States concerning the liability of the
 producer for damage caused by the defectiveness of
 his products is necessary, because the divergencies
 may distort competition in the common market;
whereas rules on liability which vary in severity lead
 to differing costs for industry in the various Member
 States and in particular for producers in different
 Member States who are in competition with one
 another;
                                                                   (2) The modifications of the original version are printed in
 (') OJ N. C 241, 14. 10. 1976, p. 9.                                  bold type.
 ---pagebreak---  N o C 271/4                          Official Journal of the European Communities                             26. 10. 79
                     ORIGINAL TEXT                                                  AMENDED TEXT
 Wheras approximation is also necessary because the             unchanged
 free movement of goods within the common market
 may be influenced by divergencies in laws; whereas
 decisions as to where goods are sold should be based
 on economic and not legal considerations;
 Whereas, lastly, approximation is necessary because            unchanged
 the consumer is protected against damage caused to
 his health and property by a defective product either
 in differing degrees or in most cases not at all,
 according to the conditions which govern the liability
 of the producer under the individual laws of Member
 States; whereas to this extent, therefore, a common
 market for consumers does not as yet exist;
Whereas an equal and adequate protection of the                 unchanged
 consumer can be achieved only through the intro-
 duction of liability irrespective of fault on the part of
the producer of the article which was defective and
caused the damage; whereas any other type of
 liability imposes on the injured party almost insur-
mountable difficulties of proof or does not cover the
important causes of damage;
Whereas liability on the part of the producer                   unchanged
irrespective of fault ensures an appropriate solution to
this problem in an age of increasing technicality,
because he can include the expenditure which he
 incurs to cover this liability in his production costs
when calculating the price and therefore divide it
 among all consumers of products which are of the
same type but free from defects;
Whereas liability cannot be excluded for those                  unchanged
products which at the time when the producer put
them into circulation could not have been regarded as
defective according to the state of science and
technology ('development risks'), since otherwise the
consumer would be subjected without protection to
the risk that the defectiveness of a product is
discovered only during use;
Whereas liability should extend only to moveables;             Whereas liability should extend only to moveables
whereas in the interest of the consumer it nevertheless        which have been industrially produced; [22 words
should cover all types of moveables, including                 omitted] that as a result it is appropriate to exclude
therefore agricultural produce and craft products;             liability for agricultural craft and artistic products;
whereas it should also apply to moveables which are            that the liability provided for by this Directive should
used in the construction of buildings or are installed         also apply to moveables which are used in the con-
in buildings;                                                  struction of buildings or are installed in buildings;
Whereas the protection of the consumer requires that           unchanged
all producers involved in the production process
should be made liable, in so far as their finished
product or component part or any raw material
supplied by them was defective; whereas for the same
 ---pagebreak--- 26. 10. 79                       Official Journal of the European Communities                        N o C 271/5
                     ORIGINAL TEXT                                                AMENDED TEXT
reason liability should extend to persons who market
a product bearing their name, trademark or other
distinguishing feature, to dealers who do not reveal
the identity of producers known only to them, and to
importers of products manufactured outside the
European Community;
Whereas, where several persons are liable, the               unchanged
protection of the consumer requires that the injured
person should be able to sue each one for full
compensation for the damage, but any right of
recourse enjoyed in certain circumstances against
other producers by the person paying such
compensation shall be governed by the law of the
individual Member States;
Wheras to protect the person and property of the             unchanged
consumer, it is necessary, in determining the
defectiveness of a product, to concentrate not on the
fact that it is unfit for use but on the fact that it is
unsafe; whereas this can only be a question of safety
which objectively one is entitled to expect;
                                                             Whereas the producer should no longer be liable when
                                                             the product has not been made in the course of
                                                             business activities;
                                                             Whereas account should be taken of the contributory
                                                             negligence of the plaintiff in the apportionment of
                                                             damages.
Whereas the producer is not liable where the                 unchanged
defective product was put into circulation against his
will or where it became defective only after he had
 put it into circulation and accordingly the defect did
 not originate in the production process; the
 presumption nevertheless is to the contrary unless he
 furnishes proof as to the exonerating circumstances;
Whereas in order to protect both the health and the          Whereas in order to protect both the health and the
 private property of the consumer, damage to property        private property of the consumer, damage to
 is included as damage for which compensation is             property, nonmaterial damage and compensation for
 payable in addition to compensation for death and           pain and suffering is payable in addition to
 personal injury; whereas compensation for damage to         compensation for death and personal injury; whereas
 property should nevertheless be limited to goods            compensation for damage to property should
 which are not used for commercial purposes;                 nevertheless be limited to goods which are not used
                                                             for commercial purposes;
                                                             Whereas the damage recoverable should also include
                                                             compensations for pain and suffering and other
                                                             nonmaterial damages;
Whereas compensation for damage caused in the                unchanged
 business sector remains to be governed by the laws of
 the individual States;
 ---pagebreak---  N o C 271/6                           Official Journal of the European Communities                             26. 10. 79
                      ORIGINAL TEXT                                                  AMENDED TEXT
 Whereas the assessment of whether there exists a                unchanged
 causal connection between the defect and the damage
 in any particular case is left to the law of each
 Member State;
 Whereas since the liability of the producer is made             Whereas if the liability of the producer is not based on
 independent of fault, it is necessary to limit the              fault, it is not appropriate to establish indemnity
 amount of liability; whereas unlimited liability means          ceilings which the Council can revise and eventually
 that the risk of damage cannot be calculated and can            eliminate in relation to personal injuries.
 be insured against only at high cost;
Whereas since the possible extent of damage usually              Whereas since the possible extent of damage usually
 differs according to whether it is personal injury or           differs according to whether it is personal injury or
 damage to property, different limits should be                  damage to property, different limits should be
 imposed on the amount of liability; whereas in the              imposed on the amount of liability; whereas in the
case of personal injury the need for the damage to be            case of personal injury the need for the damage to be
calculable is met where an overall limit to liability is         calculable is met where an overall limit to liability is
provided for; whereas the stipulated limit of 25                 provided for; [77 words omitted]
million European units of account covers most of the
mass claims and provides in individual cases, which in
practice are the most important, for unlimited
liability; whereas in the case of the extremely rare
mass claims which together exceed this sum and may
therefore be classed as major disasters, there might be
under certain circumstances assistance from the
public;
Whereas in the much more frequent cases of damage               Whereas in the much more frequent cases of damage
to property, however, it is appropriate to provide for          to property, however, it is appropriate to provide for
a limitation of liability in any particular case, since         a limitation of liability in any particular case, since
only through such a limitation can the liability of the         only through such a limitation can the liability of the
producer be calculated; whereas the maximum                     producer be calculated; whereas the maximum
amount is based on an estimated average of private              amount is based initially on an estimated average of
assets in a typical case; whereas since this private            private assets in a typical case; whereas since this
property includes moveable and immoveable property,             private property includes moveable and immoveable
although the two are usually by the nature of things            property, although the two are usually by the nature
of different value, different amounts of liability              of things of different value, different amounts of
should be provided for;                                         liability should be provided for;
Whereas the limitation of compensation for damage               unchanged
to property, to damage to or destruction of private
assets, avoids the danger that this liability becomes
limitless; whereas it is therefore not necessary to
provide for an overall limit in addition to the limits to
liability in individual cases;
Whereas by Decision 3 2 8 9 / 7 5 / E C S C of 18 De-           Whereas the European unit of account is defined in
cember 1975 (') the Commission, with the assent of              Article 10 of the Financial Regulation of 21 De-
the Council, defined a European unit of account                 cember 1977 ( 2 );
which reflects the average variation in value of the
currencies of the Member States of the Community;
(') OJ N o L 327, 19. 12. 1975. Also the Council Decision of
    21. 4. 1975 on the definition and conversion of the
    European unit of account used for expressing the
    amounts of aid mentioned in Article 42 of the ACP-EEC
    Convention of Lome, OJ N o L 104, 24. 4. 1975.              (2) OJ N o L 356, 31. 12. 1977, p. 1.
 ---pagebreak--- 26. 10. 79                           Official Journal of the European Communities                            N o C 271/7
                       ORIGINAL TEXT                                                 AMENDED TEXT
 Whereas the movement recorded in the economic and               Whereas the Council should proceed every three years
 monetary situation in the C o m m u n i t y justifies a         to examine the amounts fixed by the Directive to see
 periodic review of the ceilings fixed by the Directive;         whether, having regard to economic and monetary
                                                                 movement in the Community, it is appropriate to
                                                                 revise or even eliminate the ceiling established for
                                                                 liability for personal injuries and to revise that
                                                                 provided for liability for damage to property;
Whereas a uniform period of limitation for the                   unchanged
 bringing of action for compensation in respect of the
 damage caused is in the interest both of consumers
 and of industry; it appeared appropriate to provide
 for a three-year period;
Whereas since products age in the course of time,                unchanged
higher safety standards are developed and the state of
science and technology progresses, it would be
unreasonable to make the producer liable for an
unlimited period for the defectiveness of his products;
whereas, therefore, the liability should be limited to a
reasonable length of time; whereas this period of time
cannot be restricted or interrupted under laws of the
M e m b e r States, whereas this is without prejudice to
claims pending at law;
Whereas to achieve balanced and adequate protection              unchanged
of consumers no derogation as regards the liability of
the producer should be permitted;
Whereas under the laws of the M e m b e r States an              unchanged
injured party may have a claim for damages based on
grounds other than those provided f o r in this
Directive; whereas since these provisions also serve to
attain the objective of an adequate protection of
consumers, they remain unaffected;
W h e r e since liability for nuclear damage is already          unchanged
subject in all M e m b e r States to adequate special rules,
it has been possible to exclude damage of this type
from the scope of the directive,
 HAS ADOPTED THIS DIRECTIVE:
                           Article 1                                                      Article 1
T h e producer of an article shall be liable for damage          T h e producer of an article shall be liable for damage
caused by a defect in the article, whether or not he             caused by a defect in the article, whether or not he
knew or could have known of the defect.                          knew or could have k n o w n of the defect. This
                                                                 provision applies also if the article has been incor-
                                                                 porated in immovable property.
T h e producer shall be liable even if the article could         unchanged
not have been regarded as defective in the light of the
 ---pagebreak---  N o C 271/8                         Official Journal of the European Communities                             26. 10. 79
                     ORIGINAL TEXT                                                   AMENDED-TEXT
  scientific and technological development at the time
 when he put the article into circulation.
                                                               The producer is not liable under the provisions of this
                                                               Directive if the defective article is a primary agri-
                                                               cultural product, a craft or an artistic product when it
                                                               is clear that it is not industrially produced.
                          Article 2                                                       Article 2
 'Producer' means the producer of the finished article,        unchanged
 the producer of any material or component, and any
 person who, by putting his name, trademark, or other
 distinguishing feature on the article, represents
 himself as its producer.
 Where the producer of the article cannot be
 identified, each supplier of the article shall be treated
 as its producer unless he informs the injured person,
 within a reasonable time, of the identiy of the
 producer or of the person who supplied him with the
 article.
Any person who imports into the European
 Community an article for resale or similar purpose
shall be treated as its producer.
                         Article 3                                                       Article 3
Where two or more persons are liable in respect of            Where two or more persons are liable in respect of
the same damage, they shall be liable jointly and             the same damage, they shall be liable jointly and
severally.                                                    severally, each person retaining the right to
                                                              compensation from the others.
                         Article 4                                                       Article 4
A product is defective when it does not provide for           A product is defective when, being used for the
persons or property the safety which a person is             purpose for which it is apparently intended, it does
entitled to expect.                                           not provide for persons or property the safety which
                                                              a person is entitled to expect, taking into account all
                                                             the circumstances, including its presentation and the
                                                             time at which it was put into circulation.
                         Article 5                                                       Article 5
The producer shall not be liable if he proves that l>e       The producer shall not be liable if he proves:
did not put the article into circulation or that it was
not defective when he put it into circulation.               (a) that he did not put the article into circulation,
                                                             (b) that, having regard to all the circumstances, it was
                                                                   not defective when he put it into circulation;
                                                             (c) that the article was neither produced for sale, hire
                                                                   or any other kind of distribution for the
                                                                   commercial purposes of the producer nor
 ---pagebreak--- 26. 10. 79                          Official Journal of the European Communities                             N o C 271/9
                       ORIGINAL TEXT                                                  AMENDED TEXT
                                                                     produced and distributed within the course of his
                                                                     business activities.
                                                                If the victim or any person for whom he is liable has
                                                                by his fault contributed to the damage the
                                                                compensation payable may be reduced or no
                                                                compensation may be awarded.
                           Article 6                                                      Article 6
For the purpose of Article 1 'damage' means:                    For the purpose of Article 1 'damage' means:
 (a) death or personal injuries;                                (a) death or personal injuries;
(b) damage to or destruction of any item of property            (b) damage to or destruction of any item of property
      other than the defective article itself where the              other than the defective article itself where the
      item of property:                                              item of property:
      (i) is of a type ordinarily acquired for private use            (i) is of a type ordinarily acquired for private use
           or consumption, and                                            or consumption, and
      (ii) was not acquired or used by the claimant for              (ii) was not acquired or used by the claimant
           the purpose of his trade, business or                          exclusively for the purpose of his trade,
           profession.                                                    business or profession,
                                                                (c) damages for pain and suffering and other non-
                                                                     material damage.
                           Article 7                                                      Article 7
The total liability of the producer provided for in this        The total liability of the producer provided for in this
Directive for all personal injuries caused by identical         Directive for all personal injuries caused by identical
articles having the same defect shall be limited to 25          articles having the same defect may be limited to a
million European units of account (EUA).                        maximum amount which is to be determined by a
                                                                qualified majority of the Council acting on a proposal
                                                                from the Commission. Prior to any such determi-
                                                                nation by the Council this amount shall be fixed at 25
                                                                million European units of account (EUA).
                                                                This amount also includes the damages specified in
                                                                Article 6 (c) when they are related to death or
                                                                personal injury.
The liability of the producer provided for by this              unchanged
Directive in respect of damage to property shall be
limited per capita:
— in the case of moveable property to 15 000 EUA,
     and
— in the case of immoveable property to 50 000
    EUA.
                                                                This amount also includes the damages specified in
                                                                Article 6 (c) when they are related to material
                                                                damage.
 ---pagebreak--- No C 271/10                           Official Journal of the European Communities                          26. 10. 79
                    ORIGINAL TEXT                                                  AMENDED TEXT
The European unit of account (EUA) is as defined by            The European unit of account (EUA) is as defined by
Commission Decision 3289/75/ECSC of 18 De-                     Article 10 of the Financial Regulation of 21 De-
cember 1975.                                                   cember 1977.
The equivalent in national currency shall be                   unchanged
determined by applying the conversion rate prevailing
on the day preceding the date on which the amount
of compensation is finally fixed.
The Council shall, on a proposal from the                      The Council shall, on a report from the Commission,
Commission, examine every three years and, if                  examine every three years the amounts specified in
necessary, revise the amounts spcified in EUA in this          this Article. Where necessary, the Council shall,
Article, having regard to economic and monetary                acting by a qualified majority on a proposal from the
movement in the Community.                                     Commission, revise or cancel the amount specified in
                                                               paragraph 1 of this Article or revise the amounts
                                                               specified in paragraph three, taking into consideration
                                                               economic      and    monetary     movement     in the
                                                               Community.
                         Article 8                                                    Article 8
A limitation period of three years shall apply to              unchanged
proceedings for the recovery of damages as provided
for in this Directive. The limitation period shall begin
to run on the day the injured person became aware,
or should reasonably have become aware of the
damage, the defect and the identity of the producer.
The laws of Member States regulating suspension or
interruption of the period shall not be affected by this
Directive.
                         Article 9                                                    Article 9
The liability of a producer shall be extinguished upon         The liability of the producer shall be extinguished if
the expiry of 10 years from the end of the calendar            an action is not brought within 10 years from the date
year in which the defective article was put into circu-        on which the producer put into circulation the
lation by the producer, unless the injured person has          individual product which caused the damage.
in the meantime instituted proceedings against the
producer.
                        Article 10                                                    Article 10
Liability as provided for in this Directive may not be         unchanged
excluded or limited.
                        Article 11                                                   Article 11
Claims in respect of injury or damage caused by                unchanged
defective articles based on grounds other than that
provided for in this directive shall not be affected.
 ---pagebreak--- 26. 10. 79                      Official Journal of the European Communities              No C 271/11
                    ORIGINAL TEXT                                           AMENDED TEXT
                       Article 12                                              Article 12
This Directive does not apply to injury or damage           unchanged
arising from nuclear accidents.
                       Article 13                                              Article 13
Member States shall bring into force the provisions         unchanged
necessary to comply with this Directive within 18
months and shall forthwith inform the Commission
thereof.
                       Article 14                                              Article 14
Member States shall communicate to the Commission           unchanged
the text of the main provisions of internal law which
they subsequently adopt in the field covered by this
Directive.
                       Article 15                                              Article 15
This Directive is addressed to Member States.               unchanged