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
3
. Differently, it
must be interpreted as meaning that the
system of producer liability put in place by

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