GIVE A CRITICAL ASSESSMENT OF EU TORT HARMONISATION IN THE LIGHT OF THE DIRECTIVE

“European Tort Law is mentioned at many occasions and discussed at various levels, thus it exists”. (C. Van Daam, European Tort Law, Oxford University Press, Oxford, 2006, page 4). This statement is very important, since it gives a precise idea of the level of harmonisation of EU tort law, which is not embodied in a specific and complete . In fact, it must be stressed that the approach of the to tort law is very fragmentary, because it deals with tort law without a focus for the main principles.

Moreover, one important distinction has to be made as regards the sources of European Tort Law. On one hand, we have a first tier represented by the binding EU tort law, that comes from the Eu institutions, through the work of the in Brussels and the of political powers. It is which derives from the EU institutions and which is indicated as acquis communautaire. Eu tort law is basically based on the EU fundamental principles, on the rules embodied in the and on the ECJ’. On the other hand, we have European Ius Commune, that is a set of rules which comes from a lower level, in the sense that it constitutes the result of the activity of scholars and legal professionals. This lower tier is represented by and it is currently mainly concentrated in the academic area. Different from the sources of the first tier, these principles and comparative law in general are not binding at all. They however provide a method of interpretation, both for supranational as for national law. Anyway, in order to analyse EU Tort Law, we may distinguish two different a) The European [and The European Convention on ]. b) European secondary (, Directives, Decisions); Various aspect of tort law are also regulated in international treaties. Some of these treaties are not exclusively European and they also apply outside Europe; other treaties only bind a number of European States.

EU Tort law is almost wholly a case driven subject and therefore a good knowledge of the cases and what they stand for is essential. Regarding to tort law there is often a lack of a detailed set of provisions which, along with the variety of possible conflicts, largely leave it up to the interpreters to give substance and concrete meaning to broad and ambivalent formulae. A lecturer can describe and explain Tort Law, but the Tort Law itself is in the cases and their interpretation.

Having said that, we must focus our attention on the Council Directive of 25 July 1985 on the approximation of the , regulations and administrative provisions of the Member States concerning liability for defective products (85/374/EEC). It is the oldest and most powerful example of European harmonization in the field of tort law. It’s the most well known Directive in the area of tort law. Moreover, it has been an important example for other to reform their product liability regime. Example: China [see Tort Law of the People’s Republic of China - Chapter V]

The directive pursues different goals such as a) b) Providing a level playing field for competition between businesses throughout the EU c) Facilitating trade within the common market d) Ensuring the sound administration of .

As far as concerns the field of application of the directive, it suffices to say that: - Producer means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other feature on the product presents himself as its producer. Without prejudice to the liability of the producer, any person who imports into the Community a product for sale, hire, leasing or any form of distribution in the course of his business shall be deemed to be a producer within the meaning of this Directive and shall be responsible as a producer. Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product. The same shall apply, in the case of an imported product, if this product does not indicate the identity of the importer referred to in paragraph 2, even if the name of the producer is indicated. - damage means: (a) damage caused by death or by personal injuries; (b) damage to, or destruction of, any item of other than the defective product itself, with a lower threshold of 500 ECU, provided that the item of property: (i) is of a type ordinarily intended for private use or consumption, and (ii) was used by the injured person mainly for his own private use or consumption. This Article shall be without prejudice to national provisions relating to non-material damage. - “product” means all movables even if incorporated into another movable or into an immovable. “Product” includes electricity'.

Article 7 provides the producer with six ways to escape liability: The producer shall not be liable as a result of this Directive if he proves: a) that he did not put the product into circulation; or b) that, 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; or c) that the product was neither manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distributed by him in the course of his business; or … d) that the defect is due to compliance of the product with mandatory regulations issued by the public authorities; or e) 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; or f) in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.

The ECJ solved severals problem with the so called Kidney Case (Case C – 203/99) 1) When the product is putted into circulation? The ECJ held that art. 7 implies that a product is put into circulation when it is used during the provision of a specif medical service, consisting in preparing a human organ for transplantation, and the damage caused to the organ results from that preparatory treatement. The exemption from liability provided for in Article 7(a) of the Directive where the product has not been put into circulation is intended primarily to cases in which a person other than the producer has caused the product to leave the process of manufacture(Case C – 203/99 2) Is the directive applicable to an activity that has no economic or business purpose? The ECJ held that article 7(c) of the Directive is to be interpreted as meaning that the exemption from liability where an activity has no economic or business purpose does not extend to the case of a defective product which has been manufactured and used in the course of a specific medical service which is financed entirely from public funds and for which the patient is not required to pay any . 3) The destruction of a kidney that was to be transplanted constituted a damage caused by death or by personal injuries under art. 9, lit. a) or a damage to, or destruction of, any item of property other than the defective product itself under art. 9, lit. b)? The ECJ refrained from making a decision. It just held that it was left to national to determine the precise contents of those two heads of damage: “The national is required to examine under which head the circumstances of the case are to be categorised, namely whether the case concerns damage covered either by point (a) or by point (b) of the first paragraph of Article 9 or non-material damage which may possibly be covered by national law. The national court may not, however, decline to award any at all under the Directive on the ground that, where the other conditions of liability are fulfilled, the damage incurred is not such as to fall under any of the foregoing heads”.

According to the ECJ’s case law, the margin of discretion available to the Member States in order to make provision for product liability is entirely determined by Directive 85/374 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products and must be inferred from its wording, purpose and structure. The fact that the Directive provides for certain derogations or refers in certain cases to national law does not mean that in regard to the matters which it regulates harmonisation is not complete.

Member States shall provide in their legislation that a limitation period of three years shall apply to proceedings for the recovery of damages as provided for in this Directive. The limitation period shall begin to run from the day on which the became aware, or should reasonably have become aware, of the damage, the defect and the identity of the producer. Moreover, Member States shall provide in their legislation that the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a period 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. In Case C-358/08, Aventis Pasteur SA v. OB, the ECJ held that article 11 must be interpreted as precluding national legislation, which allows the substitution of one for another during proceedings, from being applied in a way which permits a ‘producer’, within the meaning of Article 3 of that directive, to be sued, after the expiry of the period prescribed by that article, as defendant in proceedings brought within that period against another person.

The Directive aims to harmonize European regimes but it only does so to a certain extent. Substantial differences remain because of the: 1) options in the Directive 2) there is a threshold limit (500 Euros) that excludes from compensation a lot of consumers that suffers minor damages from product defects. The establishment of this financial threshold gives unsatisfactory answers to small claims that are widespread in the field of consumer goods, especially when national legal systems provide low cost for dealing with product liability claims. 3) remaining differences in the national laws of damages, because of the application of pre- existing liability regimes next to the Directive. Directive leaves national laws untouched by virtue of art. 13, thus national legislation concerning tort law continues to be used alongside the EC Directive. In most cases, national legislation can more protection to the consumer. In conclusion, we could say that EU tort law is still far from complete harmonisation.