Country:

England

Court:

European Court of Justice (ECJ), 29 May 1997

Case Name:

Commission v UK, C-300/95 [1997] ECR I-2649

Topic:

Failure of Member state to fulfill obligations

Defense precluding liability for defective products

State of scientific and technical knowledge

Articles:

Consumer Protection Act 1987

Product Liability Directive 85/374/EEC

Cases Referred:

Case C-71/92 Commission v Spain [1993] ECR I-5923

Case C-106/89 Marleasing [1990] ECR I-4135

Case C-139/91 Katsikas and Others [1992] ECR I-6577

Escola v Coca Cola Bottling Co., 24 Cal. 2d 453, 461 P 2 d 436 (1944)

Greenman v Yuba Power Products Inc., 59 Cal 2 d 57, 377 P 2 d 897 (1963)

Cronin v J.B.E. Olson Corp., 8 Cal. 3 d 121, 501, P 2 d 1153 (1972)

Facts:

The Consumer Protection Act 1987 s 4(1) (e) aim is to implement art 7(e) of the Council Directive 85/374/EEC (the Directive).

The Commission brought an action under Article 169 of the Treaty against the United Kingdom for their failure to properly transpose Article 7(e) of the Council Directive concerning liability for defective products.

Legal Issues:

The Commission contended that the wording of CPA s 4(1)(e) required a subjective assessment in that it placed the emphasis on the conduct of a reasonable producer, having regard to the standard precautions in use in the industry in question, and thus broadened the defence in the Council Directive. Furthermore, the Commission stated the Directive is based on an objective text in that the emphasis is on the state of scientific and technical knowledge rather than the capacity of producers to discover defects. Thus, it was alleged that s 4(1)(e) CPA converted the strict liability imposed by art 1 of the Directive into liability for negligence on the part of the producer.

Did the wording of CPA s 4(1)(e) convert art 7(e) of the Directive into a subjective assessment, and thus broaden the producer defence contrary to the Directive?

Decision:

The Court held that on its proper construction, CPA s 4(1)(e) places the burden of proof on the producer. It Court continued, stating that it placed no restriction on the state of scientific and technical knowledge which is to be taken into account, and thus does not suggest that the availability of the defence depends on the subjective knowledge of a producer taking reasonable care in light of the standard precautions taken in the industrial sector in question.

Moreover, the Court noted that s 1(1) of the Directive expressly provides that the relevant provisions are to be in conformity with the Directive, and the Commission failed to present any information to suggest that the English courts would interpret the CPA s 4(1)(e) inconsistency with the Directive.

The Court held in conclusion, that the Commission had selectively emphasised particular terms and wording in the CPA without demonstrating that the general legal context of the provision failed to effectively secure the full application of the Directive.

Comments:

The Court commented that by their settled case law, the scope of national laws, regulations or administrative provisions must be assessed in light of the interpretation given to them by national courts. Thus, it was commented that it would have been much wiser for the Commission to have waited until the CPA was applied by a UK court before taking action under art 169 of the Treaty against the UK for its incorrect implementation of the Directive.

What is a proper construction of art 7(e) of the Directive?

The producer of a defective product has a defence if he can prove that the objective state of the scientific and technical knowledge, at the time when the product in question was put into circulation was not such as to enable the existence of the defect to be discovered. It was, however, implicit in the wording of art 7(e) that knowledge has to have been accessible at the time when the product in question was put into circulation. However, on that issue, it is suggested that the Directive raises interpretative difficulties which, in the event of litigation where s 4(1)(e) is at issue, the national courts must resolve.

Original Text:

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