- Elgar European Law series
Chapter 6: Product Liability
THE PRODUCT LIABILITY DIRECTIVE Directive 85/374 (as amended) harmonizes laws concerning liability for defective products.1 It is commonly referred to as the ‘Product Liability Directive’. Strictly, it is a measure adopted in order to advance the integration of the market. Its Treaty base is Article 100 (which is now Article 94). Harmonization of national provisions concerning the liability of the producer for damage caused by defectiveness of products is required in the light of the distortions in competition in the Community and the impact on the movement of goods which are caused by divergences between the laws of the different Member States. However, the harmonization of laws governing liability for defective products has a profound impact on the position of the consumer. Accordingly Directive 85/374 is a major measure of Community consumer protection policy, albeit, in strict constitutional terms, as an incidental consequence of its principal objective. The first Commission proposal in the field of product liability appeared in 1976.2 The fact that it took nine years thereafter to achieve agreement on the Directive indicates the depth of controversy which surrounded this initiative. National systems of tort law vary, especially in their choice of the criteria according to which shall be judged the liability of the supplier to an injured consumer.3 Aspects of the debate are reflected in the text of the Directive that was finally adopted. In several areas the mark of uncomfortable compromise is unmistakeable. In particular, a small number of options is permitted to Member States, which...
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