The directive 85/374/EEC on defective products: its interpretation by the European Court of Justice

• Author: Inmaculada Herbosa Martínez
• Position: Professor PhD, Deusto University, (e-mail: inmaculada.herbosa@deusto.es).
• Pages: 7-17

LESIJ NO. XXIII, VOL. 2/2016

THE DIRECTIVE 85/374/EEC ON DEFECTIVE PRODUCTS: ITS

INTERPRETATION BY THE EUROPEAN COURT OF JUSTICE

Inmaculada HERBOSA MARTÍNEZ

Abstract

This paper focuses on the interpreta tion of the European Court of Justice concerning substantive

aspects of the Directive 85/374/ECC of July25, 1985, on liability for defective products. Therefore, this

work will deal with the interpr etation of some aspects rega rding the essence of products lia bility: The

concept of defect and the extent of damage covered by this liability. In a ddition, a number of issues

needing of interpretation a re analyzed, such as: The meaning of putting a product into circulation, the

right to information of the consumer in order to prove the causation of damage, and finally the problems

that ar ise in cases where the producer is exempt from liability.

Keywords: Liability, product liability, strict lia bility, producer lia bility, defective products.

1. Introduction. Principle of

complete harmonization

As it is known, products liability is

governed by the Directi ve 85/374/EEC of

July 25, 1985, on the approximation of the

laws, regulations, and administrative

provisions of the Member States concerning

liability for defective products. In essence,

this Directive concerns liability of the

producer for the damage caused by defective

products.ă ă Ită imposesă “strictă liability”

1

,

without fault, on the liable subject, the

producer, where a defective pro duct causes

injuries to a person or damage to property.

 Professor PhD, Deusto University, (e-mail: inmaculada.herbosa@deusto.es).

1

As it noted by the ECJ, that is expressly stated in the second recital in the preamble to the Directive. It is also

apparent from the enumeration of the matters to be proved by the injured person in article 4 and from the cases in

whichătheăproducer’săliability is excluded in article 7 (see Case C 402/03 Skov Æg v Bilka Lavprisvarehus A/S and

Bilka Lavprisvarehus A/S v Jette Mikkelsen and Michael Due Nielsen [2006], paragraph 19).

2

See Case C 52/00 Co mmission v France [2002], paragraph 24; Case C 154/00 Commission v Greece [2002],

paragraph 20; Case C 183/00 María Victoria González Sánchez v Medicina Asturiana SA [2002], paragraphs 24-29

and Skov and Bilka, paragraph 23. Concerning the intention to harmonize completely at Community level article 11

of the Directive, see Case 358/08, Aventis Pasteur SA v OB [2009], paragraph 37.

3

Commission v Fra nce, paragraph 21, Commission v Greece, paragraph 17, González Sánchez, paragraph 30

and Skov and Bilka, paragraph 39.

It is settled case-law that Directive

85/374 seeks to achieve, in the matters

regulated by it, completed harmonization of

the laws, regulations and administrative

provisions of the Member States

2

. To this

respect, the European Court of Justice (ECJ)

has held that reference in Article 13 to the

rights which an injured person may rely on

under the rules of the law of contractual or

non-contractual liability cannot be

interpreted as giving the Member States the

possibility of maintaining a general system

of product liability different from that

provided for in the Directive

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. Differently, it

must be interpreted as meaning that the

system of producer liability put in place by