CELEX: 51976PC0372
Language: en
Date: 1976-07-23
Title: 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

14. 10. 76                        Official Journal of the European Communities                          N o C 241/9
              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
                        (Submitted   by the Commission  to the Council on 9 September    1976)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                      insurmountable difficulties of proof or does not cover
                                                              the important causes of damage;
Having regard to the Treaty establishing the
European Economic Community, and in particular                Whereas liability on the part of the producer
Article 100 thereof,                                          irrespective of fault ensures an appropriate solution
                                                              to this problem in an age of increasing technicality,
                                                              because he can include the expenditure which he
Having regard to the proposal from the Commission,            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
Having regard      to the  opinion    of  the  European        same type but free from defects;
Parliament,
                                                               Whereas liability cannot be excluded for those
Having regard to the opinion of the Economic and              products which at the time when the producer put
Social Committee,                                              them into circulation could not have been regarded
                                                               as defective according to the state of science and
                                                               technology (development risks), since otherwise the
 Whereas the approximation of the laws of the
                                                               consumer would be subjected without protection to
 Member States concerning the liability of the
                                                               the risk that the defectiveness of a product is
producer for damage caused by the defectiveness of
                                                              discovered only during use;
his products is necessary, because the divergencies
may distort competition in the common market;
whereas rules on liability which vary in severity lead         Whereas liability should extend only to movables;
to differing costs for industry in the various Member          whereas in the interest of the consumer it
States and in particular for producers in different            nevertheless should cover all types of movables,
Member States who are in competition with one                  including therefore agricultural produce and craft
another;                                                       products; whereas it should also apply to movables
                                                               which are used in the construction of buildings or are
                                                               installed in buildings;
 Whereas approximation is also necessary because the
free movement of goods within the common market
may be influenced by divergencies in laws; whereas             Whereas the protection of the consumer requires that
 Decisions as to where goods are sold should he based          all producers involved in the production process
 on economic and not legal considerations;                     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
 Whereas, lastly, approximation is necessary because           reason liability should extend to persons who market
 the consumer is protected against damage caused to            a product bearing their name, trademark or other
 his health and property by a defective product either         distinguishing feature, to dealers who do not reveal
 in differing degrees or in most cases not at all,             the identity of producers known only to them, and to
 according to the conditions which govern the liability        importers of products manufactured outside the
 of the producer under the individual laws of Member           European Community;
 States; whereas to this extent therefore a common
 market for consumers does not as yet exist;
                                                               Whereas where several persons are liable, the
                                                               protection of the consumer requires that the injured
 Whereas an equal and adequate protection of the               person should be able to sue each one for full
 consumer can be achieved only through the                     compensation for the damage, but any right of
 introduction of liability irrespective of fault on the        recourse enjoyed in certain circumstances against
 part of the producer of the article which was                 other producers by the person paying such
 defective and caused the damage; whereas any other            compensation shall be governed by the laws of the
 type of liability imposes on the injured party almost         individual Member States;
 ---pagebreak--- N o C 241/10                       Official Journal of the European Communities                              14.10. 76
Whereas to protect the person and property of the             mass claims which together exceed this sum and may
consumer, it is necessary, in determining the                 therefore be classed as major disasters, there might be
defectiveness of a product, to concentrate not on the         under certain circumstances assistance from the
fact that it is unfit for use but on the fact that it is      public;
unsafe; whereas this can only be a question of safety
which objectively one is entitled to expect;
                                                              Whereas in the much more frequent cases of damage
                                                              to property, however, it is appropriate to provide for
                                                              a limitation of liability in any particular case, since
Whereas the producer is not liable where the                  only through such a limitation can the liability of the
defective product was put into circulation against his        producer be calculated; whereas the maximum
will or where it became defective only after he had           amount is based on an estimated average of private
put it into circulation and accordingly the defect did        assets in a typical case; whereas since this private
not originate in the production process; the                  property includes movable and immovable property,
presumption nevertheless is to the contrary unless he         although the two are usually by the nature of things
furnishes proof as to the exonerating circumstances;          of different value, different amounts of liability
                                                              should be provided for;
Whereas in order to protect both the health and the           Whereas the limitation of compensation for damage
private property of the consumer, damage to property          to property to damage to or destruction of private
is included as damage for which compensation is               assets avoids the danger that this liability becomes
payable in addition to compensation for death and             limitless; whereas it is therefore not necessary to
personal injury; whereas compensation for damage to           provide for an overall limit in addition to the limits
property should nevertheless be limited to goods              to liability in individual cases;
which are not used for commercial purposes;
                                                              Whereas       by   Decision    No     3289/75/ECSC     of
                                                              18 December 1975 (') the Commission, with the assent
Whereas compensation for damage caused in the                 of the Council, defined a European unit of account
business sector remains to be governed by the laws of         which reflects the average variation in value of the
the individual States;                                        currencies of the Member States of the Community;
                                                              Whereas the movement recorded in the economic and
Whereas the assessment of whether there exists a              monetary situation in the Community justifies a
causal connection between the defect and the damage           periodical review of the ceilings fixed by the
in any particular case is left to the law of each             Directive;
Member State;
                                                              Whereas a uniform period of limitation for the
                                                              bringing of action for compensation in respect of the
Whereas since the liability of the producer is made
                                                              damage caused is in the interest both of consumers
independent of fault, it is necessary to limit the
                                                              and of industry; whereas it appeared appropriate to
amount of liability; whereas unlimited liability means
                                                              provide for a three-year period;
that the risk of damage cannot be calculated and can.
be insured against only at high cost;
                                                              Whereas since products age in the course of time,
                                                              higher safety standards are developed and the state of
Whereas since the possible extent of damage usually           science and technology progresses, it would be
differs according to whether it is personal injury or         unreasonable to make the producer liable for an
damage to property, different limits should be                 unlimited period for the defectiveness of his
 imposed on the amount of liability; whereas in the           products; whereas therefore the liability should be
case of personal injury the need for the damage to be          limited to a reasonable length of time; whereas this
calculable is met where an overall limit to liability is       period of time cannot be restricted or interrupted
provided for; whereas the stipulated limit of 25               under laws of the Member States, whereas this is
 million European units of account covers most of the          without prejudice to claims pending at law;
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          (!) OJ No L 327, 19. 12. 1975, p. 4.
 ---pagebreak---  14. 10. 76                        Official Journal of the European Communities                         N o C 241/11
 Whereas to achieve balanced and adequate protection                                  Article 3
 of consumers no derogation as regards the liability of
 the producer should be permitted;
                                                             Where two or more persons are liable in respect of
                                                             the same damage, they shall be liable jointly and
                                                             severally.
 Whereas under the laws of the Member States an
 injured party may have a claim for damages based on
 grounds other than that provided for in this
 Directive; whereas since these provisions also serve to                              Article 4
attain the objective of an adequate protection of
 consumers, they remain unaffected;                          A product is defective when it does not provide for
                                                             persons or property the safety which a person is
                                                             entitled to expect.
 Whereas since liability for nuclear damage is already
subject in all Member States to adequate special
 rules, it has been possible to exclude damage of this
 type from the scope of the Directive,                                                Article 5
                                                             The producer shall not be liable if he proves that he
                                                             did not put the article into circulation or that it was
                                                             not defective when he put it into circulation.
HAS ADOPTED THIS DIRECTIVE:
                                                                                      Article 6
                         Article I
                                                             For the purpose of Article 1 'damage' means:
The producer of an article shall be liable for damage        (a) death or personal injuries;
caused by a defect in the article, whether or not he
knew or could have known of the defect.                      (b) damage to or destruction of any item of property
                                                                  other than the defective article itself where the
                                                                  item of property:
The producer shall be liable even if the article could
not have been regarded as defective in the light of the            (i) is of a type ordinarily acquired for private
scientific and technological development at the time                    use or consumption; and
when he put the article into circulation.                         (ii) was not acquired or used by the claimant for
                                                                       the purpose of his trade, business or
                                                                       profession.
                         Article 2
                                                                                      Article 7
                                                             The total liability of the producer provided for in this
'Producer' means the producer of the finished article,       Directive for all personal injuries caused by identical
the producer of any material or component, and any           articles having the same defect shall be limited to 25
person who, by putting his name, trademark, or               million European units of account (EUA).
other distinguishing feature on the article, represents
himself as its producer.
                                                             The liability of the producer provided for by this
                                                             Directive in respect of damage to property shall be
Where the producer of the article cannot be                  limited per capita:
identified, each supplier of the article shall be treated
as its producer unless he informs the injured person,        — in the case of movable property to 15 000 EUA,
 within a reasonable time, of the identity of the                and
producer or of the person who supplied him with the
article.                                                     — in the case of immovable property to 50 000 EUA.
Any person who imports into the European                     The European unit of account (EUA) is as defined by
Community an article for resale or similar purpose           Commission        Decision     No  3289/75/ECSC       of
shall be treated as its producer.                            18 December 1975.
 ---pagebreak--- N o C 241/12                                 Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s                           14. 10. 76
The equivalent in national currency shall be                                                                     Article  10
determined by applying the conversion rate prevailing
on the day preceding the date on which the a m o u n t                           Liability as provided for in this Directive may not be
of c o m p e n s a t i o n is finally fixed.                                     excluded or limited.
T h e Council shall, on a proposal f r o m the                                                                   Article 11
C o m m i s s i o n , e x a m i n e every three years and, if
necessary, revise the a m o u n t s specified in EUA in this
                                                                                 Claims in respect of injury or d a m a g e caused by
Article, having regard to e c o n o m i c and m o n e t a r y
                                                                                 defective articles based on g r o u n d s o t h e r t h a n t h a t
m o v e m e n t in the C o m m u n i t y .
                                                                                 provided for in this Directive shall not be affected.
                                                                                                                 Article   12
                                   Article S
                                                                                 This Directive does not apply to injury or d a m a g e
A limitation period of three years shall apply to                                arising f r o m nuclear accidents.
proceedings for the recovery of d a m a g e s as provided
for in this Directive. T h e limitation period shall begin
to run on the day the i n j u r e d person became aware,                                                          Article  13
or should reasonably have become a w a r e of the
d a m a g e , the defect and the identity of the p r o d u c e r .               M e m b e r States shall bring into force the provisions
                                                                                 necessary to comply with this Directive within
                                                                                 18       months       and       shall    forthwith     inform        the
T h e laws of M e m b e r States regulating suspension or
                                                                                 C o m m i ssi o n thereof.
interruption of the period shall not be affected by
this Directive.
                                                                                                                  Article  14
                                   Article 9                                      M e m b e r States shall c o m m u n i c a t e to the C o m m i s s i o n
                                                                                  the text of the main provisions of internal law which
                                                                                 they subsequently a d o p t in the field covered by this
T h e liability of a p r o d u c e r shall be extinguished u p o n               Directive.
the expiry of 10 years f r o m the end of the calendar
year in which the defective article was p u t into
circulation by the p r o d u c e r , unless the injured person                                                    Article  15
has in the m e a n t i m e instituted proceedings against
the p r o d u c e r .                                                            This Directive is addressed to the M e m b e r States.