A product is defective when it does not provide the safety which you are entitled to expect. You must take into consideration the following factors:

• The presentation of the product
• The use to which the product could be expected to be for
• The time when the product was put on the market.

However, a product cannot be considered defective for the sole reason that a better product is subsequently circulated in the market.

The Directive applies to movables that have been industrially produced and to movables incorporated into another movable or into an immovable.

Under the terms of the Directive, the ‘producer’ is:

• Any person involved in the production process
• The importer of the defective product
• Any person putting their name, trademark, or other distinguishing feature on the product, and
• Any person who is supplying a product whose producer cannot be identified.

The Directive, therefore, applies also in cases where the producer/s cannot be identified. In such a case, each supplier of the product is considered the producer unless the supplier informs the injured person within a reasonable time with the producer’s identity or with the details of the person/s who supplied him with the product. The same applies to imported products, moreover, the supplier would be held responsible even if the name of the producer is indicated.

It is the injured person that must provide proof of the damage done by a defective product. You must provide proof of the damage, the defect and the causal relationship between the defect and the damage. The Directive provides for liability without fault; therefore, the injured person does not need to prove the negligence or fault of the producer or importer.

The producer is exempted from liability if he/she proves that:

• He/she had not put the product into the market
• The defect which caused the damage did not exist at the time when the product was placed into the market or came into being afterwards
• The product was not manufactured for profit-making sale
• The product was neither manufactured nor distributed during his/her business
• The defect is due to compliance of the product with mandatory regulations issued by public authorities
• It was impossible to discover the existence of the defect due to the state of scientific and technical knowledge when the product was placed into the market.
• The defect is attributable to the product’s design or the instructions given by the product manufacturer.

If the damage caused results from your own fault, then the producer’s liability can be reduced. However, where the damage is caused by a defect in the product, or by a third party or by both you as the consumer and the producer, the producer’s liability does not change.

Namely, 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.

You have 3 years in which the affected party can seek compensation for the damage caused by the defective product. This period commences from the day when you become aware of the damage caused and if he/she is aware of the producer’s identity.

Note: The right to compensation expires 10 years after the product was placed on the market.