HARMONISATION OF LAW IN THE EUROPEAN UNION
EUROPEAN PRODUCT LIABILITY LAW COMPARED TO OTHER NATIONAL LIABILITY REGIMES
This section will discuss the law of the European Union Member States, but also Norwegian law and Swiss law, because – as was demonstrated above – these two systems of law are to a large extent modelled on or inspired by EU legislation. However, it should be remembered that those states enjoy a special status – they are not parties to the EU treaties and are not obliged to implement EU directives.
In all the legal systems examined in this volume, at the time of the entry into force of Directive 85/374/EEC there were legal grounds to claim compensation from the producer of a defective product. They were based on tort liability or contractual liability with numerous modifications and limitations.
Liability caused (at least theoretically) by the fault or negligence of the producer played the key role in tort liability. This type of liability was provided for in Austrian, Danish, English, French, German, Italian, Dutch, Polish and Spanish law. A few countries, such as Spain, Norway and probably Switzerland, had also, or exclusively, introduced liability independent of fault. The differences related to the extent to which an act of parliament, or more often case law, modified general principles of the tort regime. Those modifications usually involved adopting a more or less formalised principle stating that even the marketing of a dangerous product may constitute a tort. At times this principle was connected with a presumption of fault or some measures that facilitate proving the fault, eg inferring the existence of a fault from the fact of damage. There were also systems in which general principles of liability had not been extensively modified, even with regard to the process of proving fault. However, there were differences in the detailed conditions that triggered liability; those conditions were of key importance from the perspective of the injured party and the producer. An important difference concerned liability for employees and subcontractors – a crucial factor in respect of products produced on an industrial scale. In some countries (Austria, Germany) limitations on an undertaking's liability for its employees compromised the protection of persons injured by the product.