Problems with the EC Approach to Harmonization of Product Liability Law

Case Western Reserve Journal of International Law, Dec 1990

By Marianne Corr, Published on 01/01/90

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Problems with the EC Approach to Harmonization of Product Liability Law

Vol. Problems with the EC Approach to Harmonization of Product Liability Law Marianne Corr 0 1 0 Marianne Corr, Problems with the EC Approach to Harmonization of Product Liability Law, 22 Case W. Res. J. Int'l L. 235 (1990) Available at: https://scholarlycommons.law.case.edu/jil/vol22/iss2/3 1 Thi s Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons - Marianne Corr* I. INTRODUCTION On July 25, 1985, the Council of the European Communities adopted a Directive on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning Liability for Defective Products ("Directive").I The Directive adopts a "no fault" approach to imposition of liability for injuries caused by product defects.2 A defect is defined by measuring the product's performance against a standard analogous to the consumer expectations test familiar to American lawyers.3 The Directive contemplated that all necessary implementing legislation or regulations would be enacted by the Member States within three years after adoption by the Council.4 To date, however, only seven Member States have adopted legislation implementing the Directive5 and only three of those countries Greece, Italy, and the United Kingdom have complied with the three year deadline included in the Directive.6 Because of the recent and incomplete implementation of the Directive's concepts, there is little factual basis on which to predict the Directive's practical impact on the jurisprudence of the European Communities. The conventional wisdom is that, despite the adoption of American-style strict liability, Europe will not experience an Americanstyle explosion of product liability litigation. The belief that Europe will remain immune from a "litigation crisis" rests on a number of procedural and cultural differences between Europeans and Americans. These include 1) the lack of or limitations on extensive pretrial discovery, contingent fees, jury trials, and punitive damages; 2) the Directive's failure to include pain and suffering as compensable items of injury; and 3) the perception that Europeans are simply less litigious than Americans. This Article will review briefly the Directive's provisions, identifying several areas of uncertainty or confusion.7 It will then address whether a sanguine attitude toward the Directive's impact is really justified, or whether the adoption of a consumer expectations test, combined with procedural and cultural differences among the Member States, provides a spawning ground for litigation similar to that seen in the United States over the last twenty years. II. THE DIRECTIVE The stated goal of the Directive is the harmonization of the Member States' laws of product liability.' The harmonization was deemed necessary due to the perception that "existing divergences" in the systems of imposing liability might "distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the onsumer against damage caused by a defective Netherlands, n.m.n. A/151/89. The designation "n.m.n." means that no measures have been notified by the Member State to the Commission. Proceedings are initiated by the Commission through a confidential (non-published) letter to the Member State. 7 For purposes of clarity, references throughout this Article are to the provisions of the Directive itself, rather than to the provisions of any implementing legislation in the various states. The Commission has threatened to bring infringement proceedings against Member States whose implementing legislation differs substantively from the Directive, but it has not yet done so. United Kingdom, n.p.i. A/89/0153. The designation "n.p.i." means that the measure has not been properly implemented by the Member State's national law, and that proceedings have been initiated. The Directive's goal of harmonization of the laws of the Member States will obviously be defeated if states modify the provisions they adopt, but the Commission's enforcement power in this area is uncertain. The Directive provides that implementation of some of its provisions is optional, and those provisions will be noted in the text where relevant. For example, Product Liability Directive, supra note 1, art 16(1) regarding a ceiling on a producer's total liability; art. 15(l)(a) regarding the agricultural option; and art. 15(1)(b) regarding the state of scientific and technical knowledge defense. 8 Product Liability Directive, supra note 1, at preamble, para. 5. product .... 9 The Directive's concepts are boldly stated and seem straightforward: "The producer shall be liable for damage caused by a defect in his product." 10 A "product" i (...truncated)


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Marianne Corr. Problems with the EC Approach to Harmonization of Product Liability Law, Case Western Reserve Journal of International Law, 1990, Volume 22, Issue 2,