Product Safety, Private Standard Setting and Information Networks

Abstract

This essay deals with product safety and liability, looking in particular at the interaction between regulation, contract and civil liability. Risk definition, assessment and management in product safety has changed in the last 20 years, and a well recognised role is played by private actors both in standard setting, in monitoring and risk management concerning post sale duties. Post-market surveillance has become a crucial part of the risk management strategies, but the regulatory dimension has not been sufficiently linked with that of governance. In the first part, I examine the current review of product safety at EU level with the proposed regulation on market surveillance and its relationship with the broader debate concerning better regulation. In the second part, I show the increasing contractualisation of standard-setting concerning safety and product defectiveness, which influences both regulation and civil liability systems. In both cases, however, insufficient attention has been given to the implications of such a contractualisation for liability standards. I then move to information duties in product safety and product liability and claimed that business models of the supply and distribution chain may be affected by the regulatory design concerning product safety. I contend that a reform of the General Product Safety Directive and Product Liability directive should promote the creation of more structured information networks, aimed at making information production and transmission concerning product safety more effective. Enterprises should be constrained by the safety goals, but they should enjoy discretion in choosing organisational models that best fit with their business models. In particular, the distinction between hierarchical and horizontal networks should be fruitfully employed to design default rules organising the information safety network. This would be particularly important for pan-European networks which have to coordinate enterprises operating in different legal systems with different institutional frameworks. I propose to introduce default rules concerning information networks that parties can adjust to their specific business models. Private law and regulation interplay in the field of product safety. Not only it happens between administrative regulation and civil liability, as it has long been recognised, but also with contract law, given the increasing contractualization of standard-setting and the necessity to build contractual networks to implement monitoring of product safety in modern market economies. These examples suggest that the current approach to harmonisation of European Private Law is limited and does not reflect the necessity to coordinate different instruments to pursue unitary policy objectives: producing higher and more effective product safety in Europe at reasonable costs.