SOURCES OF LAW AND THEIR EVOLUTION
REGULATING PRODUCT LIABILITY PRIOR TO THE IMPLEMENTATION OF DIRECTIVE 85/374/EEC
Prior to the implementation of Directive 85/374/EEC, there was no specific legal regime for product liability in Dutch legislation. In the original proposal for a new Burgerlijk Wetboek (Dutch Civil Code, BW), dating back to 1961, a statute provision regarding product liability was included (art 6.3.13). However, this provision was removed from the proposal in 1976, when the legislator decided that the introduction of the European regulation, which was already proposed at that time, should be awaited. Due to this lack of statutory rules, tailored rules on product liability had been developed in case law on the basis of the tort law clause, art 6:162 BW (at that time art 1401 BW).
IMPLEMENTATION OF DIRECTIVE 85/374/EEC IN DUTCH LAW
1) Type of Legal Act
Directive 85/374/EEC has been implemented in Dutch law by the introduction of a separate section of the civil code; at that time arts 1407a–1407j BW (old). These provisions were replaced by arts 6:185–193 in the new BW, which entered into force in 1992. In addition, some statutory provisions were amended as a result of the implementation of the Directive. An example is art 6:173 BW (at that time art 18.104.22.168), which regulates liability for dangerous equipment. Paragraph 2 was added to this provision, excluding liability on the basis of art 6:173 BW for damage that falls within the ambit of art 6:185 ff BW, unless the criteria of subsections (a) and (b) are met (see more on this in section IX.A.4).
2) Regulatory Options
Directive 85/374/EEC granted the Member States the option to derogate from the Directive in specific situations. Firstly, Member States were allowed to codify that the definition of ‘product’ also includes primary agricultural products and game (art 15(1)(a)). Secondly, Member States could eliminate the state-of-the-art defence, thus leaving out the exclusion that the producer is not to be held liable if he proved that the state of scientific and technical knowledge at the time when the product was put into circulation was not such as to enable the existence of the defect to be discovered (art 15(1)(b)), thereby broadening the scope of the product liability.