Directive 85/374/EEC concerning liability for defective products establishes the principle of objective liability or liability without fault of the producer in cases of damage caused by a defective product. There is joint liability if more than one person is responsible for the same damage.

The Directive applies to movables which have been industrially produced, and applies to movables incorporated into another movable or into an immovable.  In accordance with the terms of the Directive the ‘producer’ means:

  • any participant in the production process;
  • the importer of the defective product;
  • any person putting their name, trade mark or other distinguishing feature on the product; and
  • any person supplying a product whose producer cannot be identified.

Therefore, the Directive provides for the situation where the producer cannot be identified. In such case, each supplier of the product is considered to be the producer, unless the supplier, informs the injured person within a reasonable time, of the identity of the producer or of the person who supplied him with the product. This applies also in the case of an imported product, if this product does not indicate the identity of the importer, even if the name of the producer is indicated. The burden of proof is on the injured person. He shall be required to prove the damage, the defect and the causal relationship between the defect and the damage. As the Directive provides for liability without fault, it is not necessary for the injured person to prove the negligence or fault of the producer or importer.

A product is considered to be defective when it does not provide the safety which the general public is entitled to expect, and the factors to be taken into account include:

  • the presentation of the product;
  • the use to which it could reasonably be put;
  • the time when the product was put into circulation.

However, a product shall not be considered defective only if a better product is subsequently put into circulation. The producer is exempted from liability if he proved that:

  • he did not put the product into circulation;
  • having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect came into being afterwards;
  • the product was not manufactured for profit-making sale;
  • the product was neither manufactured nor distributed in the course of his business;
  • the defect is due to compliance of the product with mandatory regulations issued by public authorities;
  • 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;
  • in the case of a manufacturer of a component of the final product, that the defect is attributable to the design of the product or to the instructions given by the product manufacturer.

When the injured person is at fault, the producer’s liability may be reduced, however the producer’s liability is not altered by the fact that the damage is caused both by a defect in the product and by the act or omission of a third party.

The Directive covers damage caused by death or personal injury and damage caused to an item of property intended for private use or consumption other than the defective product, with a lower threshold of €500. The Directive lays down a period of three years in which the injured party may seek compensation, and this period starts from the date on which the plaintiff became aware of the damage, the defect and the identity of the producer.

The producer’s liability expires after ten years from the date on which the product was put into circulation.