The Regulatory Function of European Private Law

The Regulatory Function of European Private Law

Edited by Fabrizio Cafaggi and Horatia Muir Watt

In the context of the current debate on the desirability and process of forming European private law (EPL), this book considers one fundamental question addressing its descriptive and normative dimension: does and should EPL pursue regulatory objectives beyond market integration?

Chapter 8: Interaction between Product Liability and Regulation at the European Level

Gerald Spindler

Subjects: law - academic, european law

Extract

Gerald Spindler The chapter deals with types and modes of product safety regulation on the European as well as on national levels, demonstrating that on each level similar modes have arisen in the European Community. These governance structures make use of a mixed state-private norm approach which in fact mostly relies upon technical regulations enacted by competent private national or European standards organizations (for example German Institute for Standardisation (DIN); Association of German Engineers (VDI); European Committee for Standardisation (CEN); and European Committee for Electrotechnical Standardization (CENELEC)). In general, these regulations have a severe impact on product liability since they are considered as the minimum standard of care in terms of tort law.1 However, courts are not bound by private set standards as they have no force of law.2 Courts may demand higher standards than those laid down in private regulations and sometimes openly deviate from these standards.3 Thus, a complex interaction between standards 1 Bundesgerichtshof of 18.5.1999, VI ZR 192/98, Neue Juristische Wochenschrift (NJW) 38 (1999), p. 2815 (2816); Spindler, Gerald (2003), in Bamberger, Heinz Georg and Roth, Herbert (eds), Kommentar zum Bürgerlichen Gesetzbuch, Munich, § 823, sec. 251; Wagner, Gerhard (2004), in Rebmann, Kurt, Säcker, Franz Jürgen and Rixecker, Roland, Münchener Kommentar zum BGB, Munich, § 823, sec. 272; Hager, Johannes (1999), in Staudinger, Kommentar zum Bürgerlichen Gesetzbuch, Zweites Buch, Recht der Schuldverhältnisse, Berlin, § 823, sec. G 34. 2 Bundesgerichtshof of 10 March 1987, VI ZR 144/86, Neue Juristische Wochenschrift (NJW) 36 (1987), pp....

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