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Penn State International Law Review Volume 5 Number 2 Dickinson Journal of International Law Article Developments in European Product Liability Ferdinando Albanese Louis F. Del Duca Follow this
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Penn State International Law Review Volume 5 Number 2 Dickinson Journal of International Law Article Developments in European Product Liability Ferdinando Albanese Louis F. Del Duca Follow this and additional works at: Part of the Comparative and Foreign Law Commons, International Law Commons, and the Torts Commons Recommended Citation Albanese, Ferdinando and Del Duca, Louis F. (1987) Developments in European Product Liability, Penn State International Law Review: Vol. 5: No. 2, Article 4. Available at: This Article is brought to you for free and open access by Penn State Law elibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law elibrary. For more information, please contact Developments in European Product Liability Cover Page Footnote The authors wish to acknowledge the excellent research assistance rendered by Ms. Nancy Aliquo, a third-year student at the Dickinson School of Law, in the preparation of this article. This article is available in Penn State International Law Review: Developments in European Product Liability Ferdinando Albanese* Louis F. Del Duca** I. Introduction Liability for personal or property damage caused by a product during use or consumption (i.e., products liability) has been the subject of intense study, comment and innovative change during the post World War II era.' In 1966 Dean Prosser in his landmark article on The Fall of the Citadel ' documented the demise of manufacturers' immunity from actions by injured parties lacking privity of contract. No one imagined that the European citadel would stand for such a long period of time. In fact, conditions for production and consumption of goods were becoming so similar in the European States and in the United States that it was reasonable to assume (especially after the Thalidomide case) 3 that demands for product liability law *Director of Environment and Local Authorities and formerly Deputy Director of Legal Affairs, Council of Europe, Strasbourg, France; Dott. di Giur., University of Messina School of Law; LL.M. Yale Law School; Diploma in International Relations from the Bologna Center of the Johns Hopkins University and the Comparative Law Institute of the University of Paris. **Associate Dean for Advanced Legal Education at the Dickinson School of Law, currently teaches Commercial Transactions, Comparative Law, and Foreign Business Transactions. He serves as editor of the Uniform Commercial Code Law Journal and the Pennsylvania Bar Association Quarterly and is co-editor of Commercial Business and Trade Laws of Italy (Oceana, 1983-); recipient of a Fulbright-Hays grant to Italy for research in International Trade Law; B.A. Temple; J.D. Harvard Law School; Dott. di Giur., University of Rome School of Law. The authors wish to acknowledge the excellent research assistance rendered by Ms. Nancy Aliquo, a third-year student at The Dickinson School of Law, in the preparation of this article. I. See generally, I STUCKI & ALTENBURGER, PRODUCT LIABILITY: A MANUEL OF PRACTICE (1981); 2 STUCKI & ALTENBURGER, PRODUCT LIABILITY: A MANUEL OF PRACTICE (1981); V. SCHWARTZ. P. LEE, F. SOUK, K. KELLY & M. MULLEN, I PRODUCT LIABILITY: CASES AND TRENDS (1987); 1 L. FRUMER AND M. FRIEDMAN, PRODUCTS LIABILITY (1977); PROSSER, LAW OF TORTS (4th ed. 1971); H. TEBBENS, INTERNATIONAL PRODUCTS LIBILITY (A COMPARATIVE AND INTERNATIONAL LEGAL ASPECTS OF PRODUCTS LIABILITY) (1979). 2. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 MINN. L. REV. 791 (1966). 3. In the early sixties many children were born, all over Europe, with deformities and incapacities. During pregnancy their mothers had taken a pharmaceutical preparation containing thalidomide. Many writs were issued against the producers who always denied liability. The cases were solved outside the courts about 10 years later. In Germany, a financial foundation was established to aid thalidomide victims. The foundation was set up with 100 million DM donated by the makers of the drug on the condition that criminal proceedings against them were dropped. In the United Kingdom, 95% of the victims' families accepted a settlement offered by the producers. The settlement was approved by the High Court. The 194 DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 5:2 reform would produce greater protection for consumers in Europe. It was also reasonable to anticipate that the European citadel would fall when in January 1977 the Council of Europe's 4 Convention On Product Liability In Regard To Personal Injury And Death (hereinafter The Convention) 5 was opened for signatures of member States. Belgium, France and Luxembourg signed the Convention on the date of its opening for signature (January 27, 1977) and Austria signed it on August 11, Since that date no other state has signed the Convention and no ratification has been obtained, because the European Economic Community (hereinafter Community ) thalidomide tragedy contributed strongly to develop the public's concern about the product liability problem in Europe. 4. The Council of Europe was founded in 1949 by 10 European nations to work for greater European unity, to improve the conditions of life and develop human values in Europe and to uphold the principles of parliamentary democracy, the rule of law and human rights. STATUTE OF THE COUNCIL OF EUROPE. MAY , 87 U.N.T.S. 103 (1951). It now includes the following 21 nations: Austria, Belgium, Cyprus, Denmark, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, The Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, The United Kingdom and Turkey. 5. See Appendix I attached, European Convention on Products Liability in Regard to Personal Injury and Death, done Jan. 27, 1977 [1977] Europ. T.S. No. 91, reprinted in 16 INT'L LEGAL MAT'LS 7 (1977) [hereinafter Convention]. Conventions may be offered by the Council of Europe to its member states on any subject pertinent to its broad statement of purposes set forth, supra note 4. Once a convention is duly ratified by the requisite number of member states, it becomes binding on them. 6. The European Economic Community is composed of 12 European nations consisting of Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain and the United Kingdom. Operating under the Treaty of Rome Establishing the European Economic Community done March 25, 1957, 298 U.N.T.S. 79 [hereinafter EEC Treaty], the major branches (denominated by the EEC Treaty as Institutions of the EEC) are the Commission, the Parliament, the Council of Ministers and the European Court of Justice. The Commission proposes and supervises laws and policies which are enacted by the Council of Ministers after study and comment is received from the Parliament. The EEC promulgates both regulations and directives. Regulations directly bind member states and also individuals in the member states. Directives, while binding, allow member states a specified time period within which the law of each member state must be adjusted so that it complies with the general rules of policy set forth by the particular directive. In effect, while directives are binding on each member state, they leave to national legislation the details as to methods regarding their implementation. EEC Treaty, id. at art The structure and jurisdiction of the European Court of Justice is provided for by Articles 164 to 188 of the Treaty of Rome, EEC Treaty, id. at arts. 164 to 188. The provisions of the Treaty grant broad jurisdiction to the court over actions involving interpretations and applications of the Treaty, regulations, directives and other actions of the Institutions of the Community. Such actions may be initiated by (a) members states; (b) the Commission, Council or other Institutions of the Community; or (c) natural or legal persons. Of particular interest is Article 177 of the treaty which provides: The Court of Justice shall have jurisdiction to give preliminary rulings (emphasis supplied) concerning: (a) the interpretation of this Treaty, (b) the validity and interpretation of acts of the institutions of the Community; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a member state, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Spring 1987] EUROPEAN PRODUCT LIABILITY was simultaneously working on a draft directive 7 on product liability. It was understandable that states who were members of both the Community and Council of Europe would not take a definitive stand on the Convention before knowing the final result of the Community's work. This attitude resulted from the fact that in September 1976 (that is before the opening of the Convention for signature of member states) the Commission 8 of the Community had transmitted to the Council of Ministers 9 a proposal for a product liability directive. Nine years of intense debate and accommodation of consumer, producer, and various national interests were necessary for the Council to conclude its work. A massive breach in the European citadel did occur on July 25, 1985 when the Council of Ministers of the European Community adopted the Directive on the Approximation of Laws, Regulations and Administrative Provisions of the Member States concerning Liability for Defective Products (hereinafter The Directive). 1 0 The citadel thus has been breached but its walls have not yet been destroyed. Article 19 of the Directive gives the member states three years from July 30, 1985, the date of notification of the Directive as a maximum period for bringing into force the laws, regulations and administrative provisions necessary to comply with the Directive. Since the impact of the new rules on the presently existing national laws of the member states is far-reaching, they will probably adopt the new implementing legislation some time close to July 30, 1988, the closing date for complying with the Directive. At that time, assuming due compliance by the member states, the law of Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. The literature on the EEC is vast and impossible to adequately list here, however, a concise yet thorough and highly readable overview introduction to the EEC is available in the following sources on request from any of the offices of the European Community. See E. NOEL, WORKING TOGETHER-THE INSTITUTIONS OF THE EUROPEAN COMMUNITY (1985); LUXEM- BOURG: OFFICE FOR OFFIC. PUBLIC. OF THE EUROP. COMMUN., THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES (1983); LUXEMBOURG: OFFICE FOR OFFIC. PUBLIC. OF THE EUROP. COMM., THE EUROPEAN COMMUNITY'S LEGAL SYSTEM (1984); LUXEMBOURG: OFFICE FOR OF- FIC. PUBLIC. OF THE EUROP. COMMUN.. THE ABC OF COMMUNITY LAW (1984). 7. EEC Treaty, supra note 6 at art Id. 9. EEC Treaty, supra note See Appendix II attached, The Directive on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning Liability for Defective Products, 28 O.J. EUR. COMM. (No. L 210) 29 (1985) [hereinafter Directive] is a legally binding instrument as to the result to be achieved by each member state. Each member state is obliged to take steps to ensure that the result is achieved but the choice of the form of the measures and methods used in achieving the results required under Community law is left to the national authorities. DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 5:2 strict liability will be applicable to products in at least twelve European states. The efforts by the Council of Europe and the Community to achieve harmonization in European product liability law in order to make this area of the law fair to consumers and producers were preceded by a rise in consumer expectations. Independent, separate changes in the product liability laws in most European countries were generated. The fragmented, non-uniform movement towards improvement of the product liability law created great uncertainty for producers in predicting the extent of their future liability, and made injured consumers' claims turn on the accident of where the injury was sustained. In such a fragmented system, answers to questions of liability depend on which national law is applicable. A seller may be liable in tort, breach of warranty, or strict liability theories depending on which national law is applicable. Answers to many other questions are equally uncertain. For example: Does protection extend to buyers, users, and innocent bystanders injured by the product? Is privity of contract a prerequisite to recovery? Which statute of limitations is applicable? Which party has the burden of proof? What defenses are available? Is there liability for defect of design, production, and failure to properly instruct the user or describe the product? What is the measure of damages? Such questions, answerable only on the basis of the chance combination of time and place where the injury is sustained, are compounded in difficulty in those situations where interstate accidents occur and conflicts of law problems arise. Such problems are mitigated by the work of the Hague Convention on Private International Law in developing conflicts of law rules regarding liability resulting from products manufactured in one state and used in another state. 1 The Council of Europe Convention and Community Directive were developed in this setting. Understanding of the Directive and the forthcoming implementation legislation will be facilitated by: (1) a review of the events which led to its adoption; (2) an overview of the product liability law of selected countries to illustrate existing similarities and differences in the domestic law of European States; and (3) a comparison of the Convention and the Directive to highlight their similarities and differences. 12 The mechanism for implementing the Convention would be rati- 1I. See Reese, Further Comments on the Hague Convention on the Law Applicable to Products Liability, 8 GA. J. INT'L & COMP. LAW 311 (1978). 12. F. Albanese has also made such a comparison in a report, LEGAL HARMONIZATION IN EUROPE, PRODUCT LIABILITY: A COMPARISON BETWEEN THE DIRECTIVE OF THE EUROPEAN COMMUNITIES AND THE COUNCIL OF EUROPE CONVENTION, published in 6 UNIT. KINGD. COMPAR. L. SERIES (CHAMELON PRESS LTMD., LONDON 1986) [hereinafter UKCLS]. Spring 1987] EUROPEAN PRODUCT LIABILITY fication of the Convention by member states of the Council of Europe.1 3 Conversely, the Directive is binding on the twelve member states of the Community who are now required to have implementation legislation in place by July 30, The two international instruments are best understood in light of eight basic questions that had to be addressed before European product liability law could be reformed. The eight questions integrated into the matters discussed in this article are as follows: II. Why is new legislation needed in the field of product liability? What should be the basis of a new regime of product liability? Who should be liable? What products should be subject to a new regime of product liability? Who should be entitled to sue? What defenses shall be allowed? What damage should be compensated? How long should the producer's liability last? Analysis of the Problems - The Need For Reform The inadequacy of the existing framework of rights, duties, and remedies provided by the laws of the European States was the backdrop in which the Convention and Directive were initiated. 15 The following brief comparative view of the product liability law of several European countries will illustrate the general status of this body of law as the Directive begins to be implemented by the member states of the Community. 6 The domestic law of these countries will continue to be important even after the Directive is implemented, particularly because of Article 13 of the Directive. This Article makes the Directive a minimum level of protection for injured parties while preserving additional rights granted to them by the domestic law of member states. It provides that this Directive shall 13. See supra note See supra note The legal literature on the problem is so vast that it would be impossible to list all the books and articles written on the reform of product liability. The authors selectively quote the following publications which contain views and contributions from many specialists: LA RESPONSIBILITE DES FABRICANTS ET DISTRIBULEURS, ED. ECONOMICA (Paris 1975); PRODUCT LIABILITY IN EUROPE, (Ed. Kluwen Deventer 1975); PRODUCT LIABILITY AND INSURANCE (Lloyd's of London Press 1977); PROCEED- INGS OF THE FIRST WORLD CONGRESS ON PRODUCT LIABILITY (London 1977); VERLAG, TENDANCES DE LA RC PRODUITS EN EUROPE ET EN AMERIQUE (Versicherungswirtschaft, E.V. Karlsruhe 1981); UKCLS supra note 12, at For a detailed review of the laws of European States, see Orban, Product Liability: A Comparative Legal Restatement-Foreign National Law and the EEC Directive, 8 GA. J. INT'L & COMP. L. 342 (1978) [hereinafter Orban]. 198 DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 5:2 not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability 17 A. French Law In France, a high degree of protection is accorded to those who are injured by dangerous or defective products. Remedies are provided both under the general law of contract, sales, and torts Law of Sales.-The French Civil Code requires a seller to warrant against hidden defects (vices caches) in the product. 19 The liability of a seller who is unaware of such a defect is limited to restitution of the price. 2 However, a seller who knew of a defect at the time of sale must pay in addition to the restitution of the price, 1 all losses and damage suffered by the purchaser. The hidden defect principle has been considerably extended by the case law in two ways. First, the concept of defect has been broadly interpreted to include anything that makes the product inappropriate for its contemplated use. 22 Second, since the principle was framed as a presumption, it enabled the professional (i.e., merchant) seller to escape liability by proving that they could not have known about the defect. To avoid this result, the Cour de Cassation s has ruled that in the case of professional sellers, liability is imposed for the consequences of hidden defects even if the seller: (a) positively proves that he or she did not know about its defect; (b) reasonably could not be expected to know about the defect; or (c) was physically incapable of discovering the defect. Although generally effective, these decisions are limited by Article 1648 of the Civil Code which provides for only a short time for an action to be initiated. The text of Article 1648 requires the action to be initiated by the buyer within a brief delay. Although not otherwise specifically fixed by the Code, this time limitation is deemed to be a few months from the discovery of the defect. Furthermore, the plaintiff must prove the existence of the defect, its hidden character in relation to the buyer and its existence prior to 17. Directive, supra note 10, at art For a concise but complete presentation of the French Law, see G. Viney, The Civil Liability of Manufacturers in France, published in UKCLS supra note 12, at CODE CIVIL [C. Civ.] art (FR.) [hereinafter C. Civ.]. 20. C. Civ. art (FR.). 21. C. Civ. art (FR.). 22. Judgment of May 11, 1965, Cass. civ. com., 306 Bull. Civ ; Judgment of May 18, 1966, Cass
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