Product Liability

Members of the European Group on Tort Law (EGTL) together with members of the Research Group on EU Private Law (Acquis Group) and its guests will participate in a project entitled ‘Product Liability Law in EU and in National Laws and the Development of New Technologies’ financed by the Polish Narodowe Centrum Nauki. The primary aim of the project is to determine whether the regulation presently in force in European Union (EU) Member States (concerning liability for loss caused by defective products, as implemented under Council Directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC)), remains, after almost thirty years, an adequate legal response to the phenomenon of products brought to market that fail to ensure appropriate levels of safety for their users. The primary argument in favor of undertaking a thorough review of the current regulation’s timeliness is the dynamic growth of new technologies, which is a phenomenon characteristic of the last decade and one supposed to be an engine of growth for the EU in the coming years. Indeed, we are currently witnesses to the dynamic development of technology in various spheres of life. Above all, mention should be made of such new phenomena as regenerative medicines, nano-technology, cloud computing, new computing devices like interactive digital eyewear, contour crafting, and autonomous technologies (eg, self-configuring systems, adaptable machines, intelligent transport devices). Introduced into everyday use, they have either begun to exert their influence on the day-to-day lives of people or will do so in the near future, carrying not only benefits but also dangers for their users. It is thus vital to assess if the current, harmonised regime on product liability – especially the concept of the product, the defect test, the development risk defence and the principle of strict liability – ensures safety for users of new technologies on the one hand and does not restrict its progress on the other. Furthermore, it is advisable to examine if cases in which the current liability regulation fails to cover the particular risks associated with new technologies are encompassed by other, non-harmonised domestic tort law regimes.

The project has two primary aims. The first is to explore the manner in which the Directive on the liability for defective products has been implemented into domestic law, with special focus on the relation between the rules of this liability and other rules of tort law. This concerns two types of relations. The first plane of coexistence for European and domestic law can be found where particular aspects of product liability are not regulated in the Directive, but are left to domestic law (this especially concerns the notion of damage, causal link, and some particular issues of limitation). The second plane is the relation between the liability regime as set forth in the Directive and other such grounds of liability present in domestic law for harm caused by bringing insufficiently safe products to market, both under tort and contract law regimes. The second, and potentially more important, aim of the project is to determine if European law will ensure sufficient safety for individuals using the goods produced by applying technologies currently under development. If it is determined that European law does not ensure the required level of protection for those making use of new technologies, it will then be necessary to consider if such protection is provided by other domestic regulations, and if the Directive should be amended in order to adapt it to new challenges.

The results of the study have been published by the Group's new series publisher, Intersentia.

Piotr Machnikowski (ed), European Product Liability: An Analysis of the State of the Art in the Era of New Technologies (2016), ISBN 978-1-78068-398-0