DIRECTIVE OF 25 JULY 1985 REGARDING RESPONSIBILITY FOR DEFECTIVE PRODUCTS

THE PARLIAMENT EUROPEAN AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2);
acting in accordance with the procedure referred to in Article 251 of the Treaty (3),
(1) Whereas product safety and the repair of damage caused by defective products constitute social imperatives which must be guaranteed within the internal market; whereas the Community has met these requirements by means of Directive 85/374 / EEC (4) and Council Directive 92/59 / EEC of 29 June 1992 on general product safety (5);
(2) Whereas Directive 85/374 / EEC established a fair distribution of the risks inherent in a modern society characterized by a high degree of technicality; whereas the said Directive has thus found a reasonable balance between the interests concerned, in particular the protection of the health of consumers, the impetus for innovation and scientific and technical development, the guarantee of undistorted competition and the facilitation of trade commercial under a harmonized civil liability regime; whereas the aforementioned Directive has thus contributed to increasing the awareness of economic operators with regard to product safety and the importance attached to it;
(3) Whereas the degree of harmonization achieved by Directive 85/374 / EEC in the laws of the Member States is not total due to the derogations provided for, in particular as regards its scope, from which are excluded unprocessed agricultural products;
(4) Whereas the Commission is monitoring the implementation and effects of Directive 85/374 / EEC, and in particular the aspects thereof relating to consumer protection and the functioning of the internal market, which have already been discussed. ‘subject of a first report; whereas, in this context, the Commission must submit, in accordance with Article 21 of the said Directive, a second report on the application thereof;
(5) Whereas the inclusion of primary agricultural products within the scope of Directive 85/374 / EEC will help restore consumer confidence in the safety of agricultural production; whereas this inclusion meets the requirements of consumer protection at a high level;
(6) Whereas these circumstances lead to the amendment of Directive 85/374 / EEC in order to facilitate, for the benefit of consumers, legitimate compensation for damage to health caused by defective agricultural products;
(7) Whereas this Directive has an impact on the functioning of the internal market, insofar as agricultural trade will no longer be affected by the disparity of systems concerning producer responsibility;
(8) Whereas the principle of strict liability provided for in Directive 85/374 / EEC must extend to all types of product, including agricultural products as defined in the second sentence of Article 32 of the Treaty and those appearing in Annex II to the said Treaty;
(9) Whereas, in accordance with the principle of proportionality, it is necessary and appropriate, in order to implement the fundamental objectives of increased protection of all consumers and of the proper functioning of the internal market, to include agricultural products in Directive 85/374 / EEC; whereas this Directive is limited to what is necessary to achieve the objectives pursued, in accordance with the third paragraph of Article 5 of the Treaty,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Directive 85/374 / EEC is amended as follows.
1) Article 2 is replaced by the following: “Article 2
For the purposes of this Directive, the term ‘product’ designates any piece of furniture, even if it is incorporated in another piece of furniture or in a building. the term ‘product’ also includes electricity. ”
2) In Article 15 (1), point (a) is deleted.
Article 2
1. Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof.
They apply these provisions from December 4, 2000.
When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The modalities of this reference are decided by the Member States.
2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this Directive.
Article 3
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 10 May 1999.
For the European Parliament
The President
J. M. GIL-ROBLES
For the Council
The President
H. EICHEL

(1) OJ C 337, 7.11.1997, p. 54.
(2) OJ C 95, 30.3.1998, p. 69.
(3) Opinion of the European Parliament of 5 November 1998 (OJ C 359, 23.11.1998, p. 25), Council common position of 17 December 1998 (OJ C 49, 22.2.1999, p. 1) and decision of the European Parliament of 23 March 1999 (not yet published in the Official Journal). Council Decision of 29 April 1999.
(4) OJ L 210, 7.8.1985, p. 29. Directive as amended by the 1994 Act of Accession.
(5) OJ L 228, 11.8.1992, p. 24.

COUNCIL DIRECTIVE
of 25 July 1985
on the approximation of the laws, regulations and administrative provisions of the Member States relating to liability for defective products
(85/374 / EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to
the Treaty establishing the European Economic Community , and in particular Article 100 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Assembly (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas an approximation of the laws of the Member States on the liability of the producer for damage caused by the defective nature of his products is necessary because their disparity is liable to distort competition, to affect the free movement of goods at within the common market and lead to differences in the level of consumer protection against damage to health and property caused by a defective product;
Whereas only the fault-free liability of the producer makes it possible to adequately resolve the problem, specific to our age of increasing technicality, of a fair allocation of the risks inherent in modern technical production;
Whereas liability can only apply to movable property which is the subject of industrial production; that consequently, it is necessary to exclude from this responsibility the agricultural products and the products of hunting, except when they were subjected to a transformation of an industrial character which can cause a defect in these products; whereas the liability provided for in this Directive must also apply to movable property which is used in the construction of buildings or incorporated into buildings;
Whereas consumer protection requires that all participants in the production process be held liable if the finished product or the component part or the raw material supplied by them shows a defect; whereas, for the same reason, the importer of products into the Community should be held liable as well as that of any person who presents himself as a producer by affixing his name, trade mark or any other distinctive sign or any person who supplies a product whose producer cannot be identified;
Whereas, when several persons are responsible for the same damage, consumer protection requires that the victim be able to claim full compensation for the damage from each of them indifferently;
Whereas, in order to protect the physical integrity and the goods of the consumer, the determination of the defective character of a product must be made according not to the unsuitability of the product for use, but to the safety defect to which the general public can legitimately expect; that this safety is assessed by excluding any abusive use of the product, unreasonable in the circumstances;
Whereas a fair distribution of risks between the victim and the producer implies that the latter must be able to release himself from liability if he proves the existence of certain facts which release him;
Whereas consumer protection requires that the producer’s liability should not be affected by the intervention of other persons who have contributed to causing the damage; whereas, however, the concurrent fault of the victim may be taken into account in reducing or eliminating such liability;
Whereas consumer protection requires compensation for damage caused by death and bodily injury as well as compensation for damage to property; that the latter must however be limited to things of private use or private consumption and be subject to the deduction of a deductible of a fixed amount to avoid an excessive number of disputes; whereas this Directive is without prejudice to compensation for pretium doloris and other moral damages, where applicable provided for by the law applicable in the case;
Whereas a uniform limitation period for action for damages is in the interests of both the victim and the producer;
whereas products wear out over time, stricter safety standards are developed and scientific and technical knowledge progresses; whereas it would therefore be unfair to make the producer responsible for defects in his product without a time limit; that its responsibility must therefore be extinguished after a period of reasonable duration, without prejudice, however, to pending actions;
Whereas, in order to ensure effective protection of consumers, it should not be possible to derogate by contractual clause from the responsibility of the producer towards the victim;
Whereas, depending on the legal systems of the Member States, the victim may have a right to compensation for non-contractual liability different from that provided for in this Directive; whereas, in so far as such provisions also tend to achieve the objective of effective consumer protection, they should not be affected by this Directive; whereas, in so far as effective consumer protection in the pharmaceuticals sector is already also ensured in a Member State by a special liability regime, actions based on this regime must also remain possible;
Whereas, to the extent that liability for nuclear damage is already governed in all the Member States by sufficient special provisions, it is possible to exclude this type of damage from the scope of this Directive;
Whereas the exclusion of agricultural raw materials and hunting products from the scope of this Directive may be perceived in certain Member States, taking into account the requirements of consumer protection, as an unjustified restriction of this protection; whereas it must therefore be possible for a Member State to extend liability to these products;
Whereas, for similar reasons, the possibility offered to a producer of relieving himself of liability if he proves that the state of scientific and technical knowledge at the time of putting the product into circulation by him did not allow him to detect the The existence of the defect may be felt in some Member States as an undue restriction of consumer protection; whereas it must therefore be possible for a Member State to maintain in its legislation or to prescribe by means of new legislation the inadmissibility of this proof of discharge; whereas in the event of new legislation, recourse to this derogation must however be subject to a Community stand-still procedure in order to increase, if possible, the level of protection in the Community in a uniform manner;
Whereas, taking into account the legal traditions in most Member States, it is not appropriate to set a financial ceiling on the strict liability of the producer; whereas, however, in so far as there are different traditions, it seems possible to accept that a Member State may derogate from the principle of unlimited liability by prescribing a limit on the overall liability of the producer for death or injury personal injury caused by identical articles with the same defect, provided that this limit is set at a level high enough to ensure adequate consumer protection and the proper functioning of the common market;
Whereas the harmonization resulting from this Directive cannot, at the present stage, be total, but opens the way to further harmonization; whereas the Council should therefore receive regular reports from the Commission on the application of this Directive, accompanied where appropriate by appropriate proposals;
Whereas, from this perspective, it is particularly important to carry out a review of the provisions of this Directive concerning the derogations open to the Member States, after the expiration of a period long enough to accumulate practical experience on the effects of these derogations on consumer protection and on the functioning of the common market,

HAS ADOPTED THIS DIRECTIVE:
Article 1
The producer is liable for damage caused by a defect in his product.

Article 2
For the application of this Directive, the term “product” designates any furniture, with the exception of agricultural raw materials and hunting products, even if it is incorporated in another piece of furniture or in a building. The term “agricultural raw materials” means products from the soil, from livestock farming and from the fishery, excluding products which have undergone first processing. The term “product” also refers to electricity.

Article 3
1. The term “producer” means the manufacturer of a finished product, the producer of a raw material or the manufacturer of a component part, and any person who presents himself as a producer by affixing his name to the product, its mark or other distinctive sign. 2. Without prejudice to the responsibility of the producer, any person who imports a product into the Community with a view to sale, rental, leasing or any other form of distribution in the course of his commercial activity is considered to be a producer of the product. within the meaning of this directive and is liable in the same way as the producer.
3. If the producer of the product cannot be identified, each supplier shall be considered as a producer, unless he informs the victim, within a reasonable time, of the identity of the producer or of the person who supplied him with the product. product. The same applies in the case of an imported product, if this product does not indicate the identity of the importer referred to in paragraph 2, even if the name of the producer is indicated.

Article 4
The victim is obliged to prove the damage, the defect and the causal link between the defect and the damage.

Article 5
If, pursuant to this Directive, several persons are liable for the same damage, their liability shall be joint and several, without prejudice to the provisions of national law relating to the right of recourse.

Article 6
1. A product is defective when it does not offer the safety which one might legitimately expect having regard to all the circumstances, and in particular:
a) the presentation of the product;
b) the use of the product that can be reasonably expected;
c) when the product is put into circulation.
2. A product cannot be considered as defective by the sole fact that a more sophisticated product has been put into circulation subsequently.

Article 7
The producer shall not be liable under this Directive if he proves: (
a) that he did not put the product into circulation;
b) that, having regard to the circumstances, it should be considered that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect arose subsequently;
c) that the product has not been manufactured for sale or for any other form of distribution for the economic purpose of the producer, nor manufactured or distributed in the course of his professional activity;
d) that the defect is due to the conformity of the product with mandatory rules issued by the public authorities;
e) that the state of scientific and technical knowledge at the time the product was put into circulation by it did not allow the existence of the defect to be detected;
f) in the case of the manufacturer of a component part, that the defect is attributable to the design of the product in which the component part has been incorporated or to the instructions given by the manufacturer of the product.

Article 8
1. Without prejudice to the provisions of national law relating to the right of recourse, the producer’s liability shall not be reduced when the damage is caused jointly by a defect in the product and by the intervention of a third party.
2. The liability of the producer may be reduced or eliminated, taking into account all the circumstances, when the damage is caused jointly by a defect in the product and the fault of the victim or of a person for whom the victim is responsible.

Article 9
Within the meaning of Article 1, the term “damage” means:
a) damage caused by death or bodily injury;
b) damage caused to or destruction of a thing, other than the defective product itself, less a deductible of 500 ECU, provided that this item:
i) is of a type normally intended for private use or consumption
and (
ii) has been used by the victim primarily for his or her private use or consumption.
This article is without prejudice to national provisions relating to non-material damage.

Article 10
1. Member States shall provide in their legislation that the action for compensation provided for in this Directive is time-barred within three years from the date on which the complainant knew or should have known of the damage, of the default and the identity of the producer.
2. The provisions of the Member States regulating the suspension or interruption of the limitation period shall not be affected by this Directive. Article 11
Member States shall provide in their legislation that the rights conferred on the victim under this Directive expire on the expiry of a period of ten years from the date on which the producer put the product into circulation, same who caused the damage, unless during this period the victim has initiated legal proceedings against it.

Article 12
The liability of the producer in application of this Directive may not be limited or excluded with regard to the victim by a clause limiting or exempting from liability.

Article 13
This Directive shall not affect the rights which the victim of damage may invoke under the law of contractual or extra-contractual liability or under a special liability regime existing at the time of notification of this directive.

Article 14
This Directive does not apply to damage resulting from nuclear accidents and which is covered by international conventions ratified by the Member States.

Article 15
1. Each Member State may:
a) by way of derogation from Article 2, provide in its legislation that within the meaning of Article 1 the term “product” also designates agricultural raw materials and hunting products ;
b) by way of derogation from Article 7 (e), maintain or, subject to the procedure defined in paragraph 2 of this Article, provide in his legislation that the producer is liable even if he proves that the state of scientific knowledge and techniques when the product was put into circulation by him did not allow the existence of the defect to be detected.
2. The Member State which wishes to introduce the measure provided for in paragraph 1 (b) shall communicate to the Commission the text of the measure envisaged.
The Member State concerned shall postpone taking the measure envisaged for a period of nine months from the date of informing the Commission and provided that the latter has not in the meantime submitted to the Council a proposal for amending this Directive relating to on the subject matter. If, however, the Commission, within three months of receiving such information, does not communicate to the Member State concerned its intention to submit such a proposal to the Council, the Member State may immediately take the measure. considered.
If the Commission submits such a proposal for amendment of this Directive to the Council within the aforementioned nine-month period, the Member State concerned shall postpone the measure envisaged for a further period of eighteen months from the presentation of the said proposal. .
3. Ten years after the date of notification of this Directive, the Commission shall submit to the Council a report on the impact for consumer protection and the functioning of the common market of the application by the courts of Article 7 point e) and paragraph 1 (b) of this article. In the light of the report, the Council, acting under the conditions provided for in Article 100 of the Treaty on a proposal from the Commission, decides to repeal Article 7 (e).

Article 16
1. Any Member State may provide that the overall liability of the producer for damage resulting from death or personal injury and caused by identical articles showing the same defect is limited to an amount which may not be less than 70 million d ‘ECU.
2. Ten years after the date of notification of this Directive, the Commission shall submit to the Council a report on the impact for consumer protection and the functioning of the common market of the application of the financial limit of liability by the States. members who have made use of the option provided for in paragraph 1. In the light of this report, the Council, acting under the conditions provided for in Article 100 of the Treaty on a proposal from the Commission, decides to repeal paragraph 1.

Article 17
This Directive shall not apply to products put into circulation before the date on which the provisions referred to in Article 19 enter into force.

Article 18
1. For the purposes of this Directive, the ECU is that defined by Regulation (EEC) No 3180/78 (1), amended by Regulation (EEC) No 2626/84 (2). The equivalent in national currency is initially that which is applicable on the date of adoption of this Directive.
2. The Council, on a proposal from the Commission, shall examine and, where appropriate, revise the amounts referred to in this Directive every five years, on the basis of economic and monetary developments in the Community.

Article 19
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than three years from the date of notification of this Directive. They shall immediately inform the Commission thereof (1).
2. The procedure defined in Article 15 (2) shall apply from the date of notification of this Directive.

Article 20
Member States shall ensure that the text of the main provisions of national law which they adopt in the field governed by this Directive is communicated to the Commission.

Article 21
The Commission shall address to the Council every five years a report on the application of this Directive and submit to it, where appropriate, appropriate proposals.

Article 22
This Directive is addressed to the Member States.
Done at Brussels, 25 July 1985.
For the Council
The President
J. POOS
(1) OJ No C 241, 14. 10. 1976, p. 9 and OJ no C 271, 26. 10. 1979, p. 3.
(2) OJ No C 127, 21. 5. 1979, p. 61.
(3) OJ No C 114, 7. 5. 1979, p. 15.
(1) OJ No L 379, 30. 12. 1978, p. 1.
(2) OJ No L 247, 16. 9. 1984, p. 1.
(1) This Directive was notified to the Member States on 30 July 1985.