Others

Question 1

Product Liability Directive

Answer 1

1. General - Art. 1 – The producer is liable

Step 1 - What is a product?
- Art. 2 – All movables

Step 2 - The product must be defective:

• Art. 6
• Manufacturing defect – Liability is easier
• Design and instruction defect – Liability is more difficult
• The fact that this one product was not defective does not exclude liability  For as long as the category of that product is

Step 3 – Damage:

• Art. 9
• Non-pecuniary loss can be awarded depending on the national law
• Pure economic loss is not covered  In that case, deal with it under national law (tort of negligence, strict liability, fault liability…)

Step 4 – Causation:

• Mentioned in Art. 4 but no defined
• Use national law  ‘But for’ test

Step 5 – Defences:

• Art. 7 – State of the art  It was not possible to detect the defect (difficult to prove)
• Art. 8 – Contributory negligence  Will only reduce, not negate liability

There is maximum harmonisation but defect, damages and causation is not

Question 2

Road Traffic Harmonisation

Answer 2

1. MS must ensure that all drivers are insured

2. MS must set up fund for uninsured/unidentified driver

Question 3

Harmonisation

Answer 3

Minimum harmonisation:

• Supranational law sets a minimum level of protection
• MS can provide higher protection

Maximum harmonisation:

• Supranational law sets a standard protection level
• MS cannot go higher or lower

Question 4

Cultural diversity

Answer 4

1. Individualism v. collectivism
2. Masculine v. feminine:
   - Masculine – Strict gender roles
   - Feminine – More mixed, help for the weak
3. Uncertainty avoidance:
   - Need for predictability
   - Avoid ambiguous situations
   - Provide detailed rules
   - Safety prevails over other needs
4. France - Scores high on uncertainty avoidance and femininity
5. Germany - Scores high on collectivism
6. England - Scores high on individualism

Question 5

Commission v. France

Answer 5

Exception to maximum harmonisation for product liability:

1. Damage - If the damage is not property loss or physical injury, it can still be compensated according to national law
2. Causation is not defined so use national law test (= but for)

Question 6

Pacemaker case (Boston Scientific)

Answer 6

If a specific product is not defective but it is part of a group of products whereof a significant percentage is defective, that product can also be considered defective

Question 7

Commission v. UK

Answer 7

The producer of a defective product must prove that the objective state of scientific and technical knowledge at the time when the product was put on the market did not enable to test the existence of the defect

Question 8

Caroline von Hannover

Answer 8

One should look at the status of the person when assessing infringement of the right to privacy