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Defective products: liability

European legislation protects consumers against damage caused by defective products. Injured persons can therefore seek compensation with regard to products put into circulation in the internal market.

ACT

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 [See amending act(s)].

SUMMARY

This Directive establishes the principle of liability without fault applicable to European producers. Where a defective product * causes damage to a consumer, the producer may be liable.

Producer is taken to mean:

  • the producer of a raw material, the manufacturer of a finished product or of a component part;
  • the importer of the product;
  • any person putting their name, trade mark or other distinguishing feature on the product;
  • any person supplying a product whose producer or importer cannot be identified.

Where two or more persons are liable for the same damage, they shall be liable jointly and severally.

Proof of damage

A product is defective where it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:

  • the presentation of the product;
  • the reasonable use of the product;
  • the time when the product was put into circulation.

The injured person carries the burden of proof. He must prove:

  • the actual damage;
  • the defect in the product;
  • the causal relationship between damage and defect.

However, he does not have to prove the negligence or fault of the producer or importer.

Exemption of producers from liability

The producer is not recognised as liable if he proves that:

  • he did not put the product into circulation;
  • the defect appeared after the product was put into circulation;
  • the product was not manufactured to be sold or distributed for profit;
  • the product was neither manufactured nor distributed in the course of his business;
  • the defect is due to compliance of the product with mandatory regulations issued by the public authorities;
  • the state of scientific and technical knowledge at the time when the product was put into circulation was insufficient to identify the defect. On this point, the Member States are permitted to take measures by way of derogation;
  • the defect of a component was caused during the manufacture of a final product.

When the injured person is at fault, the producer's liability may be reduced.

Damage covered

The Directive applies to damage:

  • caused by death or by personal injuries;
  • caused to an item of property intended for private use or consumption.

However, Member States may set a limit for the total liability of a producer in the case of death or personal injury caused by identical items with the same defect.

In addition, the Directive does not apply to injury or damage arising from nuclear accidents covered by international conventions ratified by the Member States.

Expiration of liability

The injured person has three years within which to seek compensation. This period starts from the date on which the injured person became aware of the damage, the defect and the identity of the producer.

In addition, the producer is no longer liable ten years after the date the product was put into circulation.

No contractual clause may allow the producer to limit his liability in relation to the injured person.

National provisions governing civil liability still apply.

Key terms
  • Product: all movables, even though incorporated into another movable or into an immovable, including electricity, primary agricultural products (products of the soil, of stock-farming and of fisheries, excluding products which have undergone initial processing) and game.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal

Directive 85/374/EEC

30.7.1985

30.7.1988

OJ L 210 of 7.8.1995

Amending act(s)Entry into forceDeadline for transposition in the Member StatesOfficial Journal

Directive 1999/34/EC

4.6.1999

4.12.2000

OJ L 141 of 4.6.1999

The successive amendments and corrections to Directive 85/374/EEC have been incorporated into the basic text. This consolidated version is for reference only.

Last updated: 27.04.2011
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