Full harmonization, consumer protection and products liability : a fresh reading of the case law of the ECJ

Abstract:It is debated whether the European Products Liability Directive (85/374/EEC) (EPLD) is meant to protect victims of product-related accidents or to create a level playing field. This article proposes to solve this controversy by making two separate, but interlinked claims. Taking advantage of a brand-new case and focusing on issues of burden of proof, it first identifies a trend in the recent case law of the ECJ to decide in favour of the consumer. Secondly, and more importantly, the article demonstrates that the question about the aim of the EPLD can be answered at two different levels of abstraction. In line with the legal basis of the directive (former Art. 100 EEC, current Art. 115 TFEU), the ECJ has always pressed the point that the EPLD, taken as a whole, is fully harmonizing within its scope – even to the detriment of consumers. Within this perimeter set by the ECJ, however, the directive undeniably counts as a consumer protection device. Not only the overall equilibrium struck by the directive bears witness to this phenomenon. It is also clearly manifested in the way the ECJ interprets the directive within the boundaries of the full harmonization.

Publication year:2018

Accessibility:Open