Product liability

Product liability is an important field of European private law, because when the Product Liability Directive (85/374/EEC) was adopted in 1985, it was one of the first areas to be harmonised at a European level. Before considering the directive’s operation in more detail, some more general comments on the lessons for the European harmonisation process are appropriate. First, the Product Liability Directive sought to achieve full harmonisation, a fact stressed by the European Court of Justice (ECJ) on a number of occasions. However, it was a special form of ‘non-exhaustive’ full harmonisation: Article 13 expressly retains contractual and non-contractual liability, as well as special liability systems existing at the moment the directive was notified. This might become an important model given the debates about the extent of full harmonisation to be achieved under the proposed Consumer Rights Directive. While it cannot be denied that the fact that the harmonisation is non-exhaustive undermines at least part of its rationale, such a model can nonetheless be apposite in the sphere of strict product liability, where the EU can be seen to have added an extra protective layer over pre-existing liability regimes. It is harder to justify in an area like sales law, where general contractual principles are more closely intertwined and/or substantively altered as part of the harmonisation process. Further, as we shall see, the Product Liability Directive relies upon an open-textured general norm to assess defectiveness. Experience has shown that, in practice, this has been applied in very different ways by the various national courts, in part because of the nature of the judicial process and the willingness of judges to infer defect from surrounding circumstances. This localisation of a general clause even seems to be accepted by the ECJ in the context of unfair terms (Freiburger Kommunalbauten (Case C-237/02)), and so should not, perhaps, be surprising, but rather a salutary reminder of the limits to which directives can harmonise laws when imposed into local cultural, legal and procedural environments. That said, the Product Liability Directive has done much for the convergence of the law and practice of Member States and has brought about the integration of the previously novel principle of strict liability in all legal systems of the EU.