Under Council Directive 85/374/EEC, liability of a producer crucially depends upon the proof of a product’s defectiveness. This central notion of the Directive has however long been the source of debate regarding the extent to which it is grounded in a solely safety-based approach, or whether a risk-benefit approach may be admitted. The defectiveness concept is now subject to a growing body of case law. This article examines how the courts in a selection of Member States (MS) approach the notion of defect and take account of risk-benefit considerations in determining whether a product is defective. It aims, first, at lowering the level of complexity which was added to the definition of defect in the Directive by the discretion given to national courts on the applicable standard of liability. Second, it means to show the real level and scope of harmonization of the product liability law in the EU by revealing differences that still exist in the interpretation of seemingly harmonized laws. Third, it aims to contribute to the clarification of whether the risk-benefit test is compliant with the spirit of the Directive, and thereby informing policy makers at a time where the guidelines of interpretation of the Directive are being prepared.
Marta dos Santos Silva, Duncan Fairgrieve, Piotr Machnikowski, Jean-Sébastien Borghetti, Anne Keirse, Pedro García, Eleonora Rajneri, Christoph Schmon, Vibe Ulbeck, Vera Vallone and Herbert Zech, Relevance of Risk-benefit for Assessing Defectiveness of a Product: A Comparative Study of Thirteen European Legal Systems, European Review of Private Law, Volume 29, Issue 1 (2021) pp 91-132.