CELEX: 51990PC0482
Language: en
Date: 1990-12-20
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON THE LIABILITY OF SUPPLIERS OF SERVICES

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,                            national legislations, but should be formalized         and
                                                                    applied in a standard manner;
Having regard to the Treaty establishing the European
Economic Community, and in particular Article 100a                  Whereas the characteristics of services, including their
thereof,                                                            '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
Having regard to the proposal from the Commission,                  person with no specific technical knowledge and the
                                                                    trader who possesses such knowledge, justify a reversal
In cooperation with the European Parliament,                        of the burden of proof of the fault on the part of the
                                                                    supplier of the service in favour of the injured person;
Having regard to the opinion of the Economic and
Social Committee,                                                   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
Whereas the Council Resolution of 9 November 1989                   integrity of persons and of movable or immovable
stressed the priority nature of the implementation at               property, including the persons or property which were
Community level of means of promoting the safety of                 the object of the service;
services as part of the relaunching of the consumer
protection policy;                                                  Whereas the mere fact that a better service existed or
                                                                    might have existed at the moment of performance or
Whereas there is a Community dimension to the market                subsequently does not constitute a fault;
in services;
                                                                    Whereas, having regard to the diversity of services on
                                                                    the one hand and the existence of Council Directive
Whereas, although the laws of the Member States
                                                                    85/374/EEC (*) concerning product liability on the
concerning the liability of the suppliers of services for the
                                                                    other, a broad definition of service should be adopted
damage caused by their services all seek to provide
                                                                    based on the traditional distinction between service and
greater protection for persons for whom the services are
                                                                    the manufacture of goods, services and the transfer of
intended and for third parties, they continue to differ in
                                                                    rights in rem; whereas, on account of their special
content and as regards the degree of protection
                                                                    nature, public services intended to maintain public safety
provided; whereas such differences may create barriers
                                                                    should be excluded from this Directive; whereas package
to trade and unequal conditions in the internal market in
                                                                    travel services and waste services already governed by
services; whereas they do not guarantee the same degree
                                                                    specific Community legislation should also be excluded;
of protection for the injured person against all damage
                                                                    whereas the same applies for damage already covered by
caused to the person, nor to the consumer against
                                                                    liability arrangements      governed    by    international
damage caused to movable or immovable property by a
                                                                    agreements ratified by the Member States or by the
service;
                                                                    Community;
Whereas action at Community level is the most appro-                Whereas the objective of protecting consumers and
priate in view of these divergences and the Community               compensating persons injured by defective services does
dimension of services;                                              not justify a distinction between private and public
                                                                    suppliers of services; whereas, however, only services
Whereas the principle of reversing the burden of proof              provided by commercial traders should be covered and
of a fault on the part of the supplier of the defective             not those rendered by one individual to another;
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          (') OJ No L 210, 7. 8. 1985, p. 29.
 ---pagebreak---  18. 1.91                               Official Journal of the European Communities                                N o C 12/9
 Whereas protection of the injured person requires                 HAS ADOPTED THIS DIRECTIVE:
 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                                         Article 1
 integrity of their movable or immovable property;
whereas any material damage resulting therefrom should                                       Principle
 also be compensated for;
                                                                   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,
Whereas it falls to the injured person to provide proof of         including the persons or property which were the object
the damage and of the causal relationship between that             of the service, caused by a fault committed by him in the
damage and the service supplied;                                   performance of the service.
                                                                   2.    The burden of proving the absence of fault shall
Whereas the respective positions of the parties provide            fall upon the supplier of the service.
justification that there be no reduction in the supplier's
liability where damage is caused jointly by the fault of
                                                                   3.    In assessing the fault, account shall be taken of the
the supplier and the intervention of a third party, but
                                                                   behaviour of the supplier of the service, who, in normal
that such liability may be reduced (or even waived) in
                                                                   and reasonably foreseeable conditions, shall ensure the
the event of a joint fault on the part of the injured
                                                                   safety which may reasonably be expected.
person;
                                                                   4.    Whereas the mere fact that a better service existed
                                                                  or might have existed at the moment of performance or
Whereas the protection of the injured person implies that
                                                                  subsequently shall not constitute a fault.
the supplier of the services should not be able to limit or
exclude his liability in relation to the former;
                                                                                             Article 2
Whereas when liability for a given damage is shared by                                 Definition of service
several persons, protection of the injured person requires
                                                                  For the purpose of this Directive, 'service' means any
that they have joint and several liability;                       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
Whereas the position of the consumer with regard to the           have as its direct and exclusive object the manufacture of
franchisor giving his name to the services undertaking            movable property or the transfer of rights in rem or
and the franchisee to whom he applies justifies joint and         intellectual property rights.
several liability of the franchisor, the franchisee and the
master franchisee;
                                                                  This Directive shall not apply to public services intended
                                                                  to maintain public safety. It shall not apply to package
                                                                  travel or to waste services.
Whereas this Directive is without prejudice to the
application of Council Directive 89/391 / E E C of 12 June
                                                                  Nor shall it apply to damage covered by liability
1989 on the introduction of measures to encourage
                                                                  arrangements governed by international agreements
improvements in the safety and health of workers at
                                                                  ratified by the Member States or by the Community.
work (2) and the specific Directives deriving therefrom;
                                                                                             Article 3
Whereas the system of liability established by this
Directive and the nature of the services justify reasonably                     Definition of supplier of services
short limitation periods for bringing proceedings for the         1.     The term 'supplier of services' means any natural or
recovery of damages and the termination of liability,             legal person governed by private or public law who, in
except where services relating to the design and                  the course of his professional activities or by way of a
construction of immovable property are concerned,                 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
O OJ No L 183, 29. 6. 1989, p. 1.                                 of services within the meaning of this Directive.
 ---pagebreak--- N o C 12/10                              Official Journal of the European Communities                                  18. 1.91
3.     If the supplier of the service referred to in                                         Article 8
paragraph 1 is not established within the Community,
                                                                                     Joint and several liability
and without prejudice to his liability, the person carrying
out the service in the Community shall be considered as             1.    If, in applying this Directive, several people are
the supplier of that service for the purpose of this               liable for a given damage, they shall be jointly liable,
Directive.                                                         without prejudice to the provisions of national law
                                                                   relating to the law of recourse of one supplier against
                                                                   another.
                            Article 4
                     Definition of damage                          2. The franchisor, the master franchisee and the fran-
                                                                   chisee, within the meaning of Commission Regulation
The term 'damage' means:                                            (EEC) N o 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
(a) death or any other direct damage to the health or              and severally liable within the meaning of paragraph 1.
    physical integrity of persons;
                                                                   However, the franchisor and the master franchisee may
(b) any direct damage to the physical integrity of                 absolve themselves of liability if they can prove that the
    movable or immovable property, including animals,              damage is due to a product which, on the basis of Regu-
     provided that this property:                                  lation (EEC) No 4087/88, they themselves had not been
                                                                   able to supply or impose.
      (i) is of a type normally intended for private use or
          consumption, and                                                                   Article 9
                                                                                        Extinction of rights
     (ii) was intended for or used by the injured person,
          principally for his private use or consumption;          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
(c) any financial material damage resulting directly from          period of five years from the date on which the supplier
     the damage referred to at (a) and (b).                        of services provided the service which caused the
                                                                   damage, unless in the meantime the injured person has
                                                                   instituted legal, administrative or arbitration proceedings
                            Article 5                              against that person.
                             Proof
                                                                   However, this period shall be extended to 20 years
The injured person shall be required to provide proof of           where the service relates to the design or construction of
the damage and the causal relationship between the                 immovable property.
performance of the service and the damage.
                                                                                             Article 10
                            Article 6                                                    Limitation period
                Third parties and joint liability                   1.    Member States shall provide in their legislation that
 1.    The liability of the supplier of the service shall not      a limitation period of three years shall apply to
be reduced where the damage is caused jointly by a fault           proceedings for the recovery of damages as provided for
on his part and by the intervention of a third party.               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
2.     The liability  of the supplier of the service may be         identity of the supplier of the service.
reduced, or even      waived, where the damage is caused
jointly by a fault     on his part and by the fault of the          However, this period shall be extended to 10 years
injured person, or    a person for whom the injured person         where the service relates to the design or construction of
is responsible.                                                     immovable property.
                                                                    2.    The laws of Member States regulating suspension
                            Article 7                               or interruption of the limitation period shall not be
                     Exclusion of liability                         affected by this Directive.
The supplier of a service may not, in relation to the
injured person, limit or exclude his liability under this
Directive.                                                          0) OJ No L 359, 28. 12. 1988, p. 46.
 ---pagebreak--- 18. 1. 91                             Official Journal of the European Communities                           No C 12/11
                         Article 11                             When Member States adopt these provisions, they shall
                                                                contain a reference to this Directive or shall be accom-
                  Transitional provision                        panied by such reference at the time of their official
This Directive shall not apply to services provided before      publication. The procedure for such reference shall be
the date on which the provisions referred to in Article         adopted by Member States.
12 (1) enter into force.
                                                                2. Member States shall communicate to the
                         Article 12                             Commission the provisions of national law which they
                                                                adopt in the area governed by this Directive.
                 Implementing provisions
1. Member States shall adopt the laws, regulations                                      Article 13
and administrative provisions necessary to comply with
this Directive by 31 December 1992.                                                  Final provision
They shall immediately inform the Commission thereof.           This Directive is addressed to the Member States.