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
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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)