Directive 85/374 – European Victory or a Defective Product Itself?

Abstract

Over the last few decades, product liability has become a well-established area of European private law. It surfaced as a subject in its own right in the US in 1963 in the judgment of Greenman v Yuba Power Products. In contrast, modern European product liability originated over two decades later when Directive 85/374 was introduced in 1985, concerning liability for defective products (Product Liability Directive hereafter), and embracing the idea of strict liability of manufacturers for damage caused by circulating a defective product. The Directive aims for full harmonisation and the provision of a high and equal level of consumer protection. In recent years the EU Product Liability Directive has become something of a global smash hit, providing not only a template for EU Member States, but also an international blueprint used by countries worldwide, including South Africa, Australia, Brazil and countries in the Asia Pacific Region when reforming their product liability regimes. There is no doubt that the Directive politically speaking has been a major success, representing arguably the most powerful example of European harmonisation efforts within the area of tort law where previous initiatives have failed,3 and influencing the law worldwide. However its actual impact has been negligible; The Directive has not done much to unify EU product liability law in action, nor strengthened consumer protection. In the majority of countries the implementation of the Directive has not significantly affected the nature or frequency of product liability litigation. If victims sue at all they rarely make use of the special legislation implementing the Directive’s strict liability rules.