The Principles of European Tort Law and Product Liability

Abstract The authors of the Principles of European Tort Law (PETL) did not intend to regulate in detail the strict liability of a manufacturer for damage caused by a defect in its product. While creating general principles of liability for damage caused otherwise than by breach of an obligation, they had no need to refer to those problems for which uniform and detailed solutions already existed in the European Communities. Product liability was such a problem (the only one in the area of tort law, by the way). Given the existence of the 1985 Product Liability Directive, there was no need to look for an answer to the issue of the victim’s claim against the producer in the PETL’s provisions on strict liability (art 5:101 PETL) or on fault-based undertaking liability (art 4:202 PETL). However, the need for this has emerged in recent years. As technology and business models have developed, new possibilities of harm to users of products (in the broad sense of the latter term) and third parties have emerged, which seem to call for the liability of the manufacturer or commercial intermediaries. This liability, however, cannot be based on 1985 Product Liability Directive (PLD) provisions. The question therefore arises whether the Principles adopted in 2005 would be a sufficient foundation upon which such a liability rule could be built. The article discusses some of these new damage scenarios and explains why neither the narrow approach to strict liability in PETL nor its fault-based enterprise liability rule yields satisfactory results in relation to them. It then outlines the current proposal for a new European product liability law, aiming to fill these liability gaps.