European UnionProduct Liability Directive 85/374/EEC, producer liability for defective products
In force since .
A product liability rule binding private bodies.
- Private right of action
- Yes
As of .
What it requires
- Check whether your software is a 'product' under Article 2 as replaced by Directive 1999/34/EC, which covers all movables, even if incorporated into another movable or into an immovable, and electricity; the definition does not name software.
- Be able to show when you first put each product into circulation: you are not liable if you prove you did not put it into circulation, or that the defect probably did not exist then or came into being afterwards (Art. 7(a) and (b)).
- If you import a product into the Community for sale, hire, leasing or any form of distribution in the course of your business, you answer as its producer (Art. 3(2)); if you supply a product whose producer cannot be identified, you are treated as the producer unless you tell the injured person within a reasonable time who the producer or your own supplier is (Art. 3(3)).
- If you make a component, you are not liable where the defect is attributable to the design of the product the component was fitted in or to the instructions given by that product's manufacturer (Art. 7(f)).
- Do not count on a contract term to limit or exclude your liability to an injured person (Art. 12).
- Keep in mind that the injured person's rights against you are extinguished 10 years after you put the actual product that caused the damage into circulation, unless proceedings have been instituted against you in the meantime (Art. 11).
These lines are LexLint's reading of the law's text, as of . Also read by: Case C-65/20, VI v KRONE - Verlag Gesellschaft mbH & Co KG, judgment of (recorded ).
Who enforces it
Settledness
- As of
- Case link
- https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020CJ0065
- Case citation
- Case C-65/20, VI v KRONE - Verlag Gesellschaft mbH & Co KG, judgment of
- Open questions
- Is software supplied on its own a 'movable', and so a 'product', within Article 2 of Directive 85/374/EEC?
- Does a producer of software supplied as a service answer as a 'producer' under Article 3 of Directive 85/374/EEC?
What this law does
Article 1 makes the producer liable for damage caused by a defect in his product. As replaced by Directive 1999/34/EC, Article 2 defines a product as all movables, even if incorporated into another movable or into an immovable, and says a product includes electricity. Directive 1999/34/EC extended the principle of liability without fault to all types of product, including agricultural products. Directive 1999/34/EC required Member States to apply its measures from .
Article 3(2) deems a person who imports a product into the Community for sale, hire, leasing or any form of distribution in the course of his business to be a producer. Article 3(3) treats each supplier of a product as its producer where the producer cannot be identified, unless the supplier informs the injured person within a reasonable time of the identity of the producer or of the person who supplied the product.
Article 4 requires the injured person to prove the damage, the defect and the causal relationship between defect and damage. Article 6(1) treats a product as defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account.
Article 7(e) frees the producer who proves that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered. Article 15(1)(b) lets a Member State maintain, or introduce subject to the procedure in Article 15(2), a rule that the producer is liable even if he proves that the state of scientific and technical knowledge did not enable the defect to be discovered.
Article 9 covers damage caused by death or by personal injuries, and damage to or destruction of an item of property other than the defective product itself, with a lower threshold of 500 ECU, where the item is of a type ordinarily intended for private use or consumption and was used by the injured person mainly for his own private use or consumption.
Article 10(1) sets a limitation period of three years, running from the day on which the plaintiff became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer. Article 11 extinguishes the rights of the injured person on the expiry of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.
Article 12 provides that the liability of the producer may not, in relation to the injured person, be limited or excluded by a provision limiting his liability or exempting him from liability. Article 16(1) lets a Member State limit a producer’s total liability for death or personal injury caused by identical items with the same defect to an amount of not less than 70 million ECU.
Article 17 provides that the Directive does not apply to products put into circulation before the date on which the national provisions referred to in Article 19 enter into force. Article 19(1) required Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive not later than three years from the date of its notification. The Directive records that it was notified to the Member States on .
Article 21 of Directive (EU) 2024/2853 repeals Directive 85/374/EEC with effect from and keeps it in application for products placed on the market or put into service before that date.
When LexLint raises it
When your app profile says your app distributes a software product or ships a mobile app.