French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

Directive No 85/374 of 25 July 1985  seeks to remedy the harmful effects, both for consumers and producers, of the disparity in the laws of the Member States concerning liability for defective products. The search for a balance between the interests of the various parties involved led to the establishment of a regime of no-fault liability on the part of the producer vis-à-vis any victim of physica …

Directive No 85/371

Directive No 85/374 of 25 July 1985  seeks to remedy the harmful effects, both for consumers and producers, of the disparity in the laws of the Member States concerning liability for defective products. The search for a balance between the interests of the various parties involved led to the establishment of a regime of no-fault liability on the part of the producer vis-à-vis any victim of physical injury or damage caused by a thing other than the defective product itself (Article 1), tempered by certain grounds for exemption (Article 7) and a short statute of limitations regime (Articles 10 and 11). However, if the producer is responsible for the damage  caused by a defect in its product , defined as any movable, including electricity, even though incorporated into another movable or into an immovable (Article 2), the victim is not exempt from the obligation to establish, in accordance with the provisions of Article 4, (i) the defect of the thing, even if it is only potential , which refers to the lack of safety that can reasonably be expected taking all circumstances into account (Article 6), (ii) his damage, and (iii) the existence of a causal link between the defect and the damage. However, the Union court recently held that when a potential defect in products belonging to the same group or in the same series of production is found, such a product can be classified as defective, without it being necessary to establish said defect in this product . As the directive is for maximum harmonization, the margin of discretion that Member States have to regulate liability for defective products is inferred from its wording, objective and economy .

Article 1 establishes the principle of liability of the producer, defined as “the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer” (Article 3(1)) or “without prejudice to the liability of the producer, any person who imports (a product) into the Community” (Article 3(2)) . The participation of the person who presents itself as the producer in the manufacturing process of the product is not necessary for it to be qualified as a producer within the meaning of the directive . Furthermore, the concept of producer does not require that the person who has affixed his name, trademark or other distinctive sign to the product or who has authorized such affixing also presents himself as the producer of the product in some other way . Thus, the supplier of a defective product must be considered to be a “person who presents him [or her]self as the producer” of that product, within the meaning of Article 3(1) of the directive, where that supplier has not physically affixed his name, trademark or other distinctive sign to the said product, but the trademark affixed by the producer coincides with the name or a distinctive element of said supplier . Furthermore, according to the Court of Justice, the operator of an electricity distribution network must be considered a producer if it changes the voltage level of the electricity for distribution to the final customer .

Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product (Article 3 (3)). The supplier cannot be regarded as liable on the same basis as the producer, even if the latter cannot be identified, when he has indicated to the victim, within a reasonable period of time, the identity of his own supplier . An intermediary supplier cannot be assimilated to the producer and be held directly liable for defects of the product vis-à-vis the victim and suppliers further down the distribution chain . Indeed, the liability of the supplier can only be retained in the alternative, when the producer is unknown, and not in any case . However, the Court of Justice stated that the supplier must indicate the identity of the manufacturer or of its own supplier on its own initiative and show diligence . After having entrusted to national law the setting of the conditions for the substitution of one party for another in the case of an action brought against a company wrongly considered to be the producer of a product when in fact it was manufactured by another company , the Court strictly limited the power conferred on the Member States by specifying that the substitution of one defendant for another in the course of legal proceedings cannot, without infringing Directive No 85/374, be applied in such a way as to enable the producer to be sued, after the expiry of the ten-year time-limit, as a defendant to proceedings initiated in this period against a person other than him . The Court of Justice has clarified that the activity of service providers cannot be equated with that of producers, importers or suppliers within the meaning of the directive, so that inaccurate health advice published in a printed newspaper is not such as to engage the strict liability of the “producer”, whether he is the publisher or printer of the newspaper or the author of the article .

If he proves the defect, the damage and the causal link between them (Article 4), the victim may claim compensation for his injury, subject to a deductible of EUR 500 for harm caused to a thing other than the defective product (Article 9). The Court of Justice, in considering a question relating to the concept of “damage caused by death or personal injuries” within the meaning of Article 9, considered that the damage caused by surgical operation to replace a defective medical product, such as a pacemaker or automatic implantable defibrillator, characterizes such damage, which falls under the liability of the producer, when this operation is necessary to eliminate the defect of the product concerned . With the exception of non-material damage, the compensation of which depends exclusively on the provisions of national law and the exclusions resulting from the clarifications provided by Article 9 for damage caused to a thing, a Member State cannot limit the types of material damage resulting from death or personal injury, or damage caused to or consisting in the destruction of a thing that will be compensated where the latter is in excess of EUR 500, without impairing the effectiveness of the directive .

Moreover, although under Article 13 the victim of damage retains the right, to obtain compensation, to rely on the law of contractual or non-contractual liability or a special liability regime existing at the time of notification of Directive No 85/374, it does not follow that a Member State can maintain a general regime of liability for defective products different from the one laid down in the European maximum harmonization text . The fact that in the Green Paper on liability for defective products of 28 July 1999 the Commission considered removing the exemption, within the framework of a possible revision of the directive, in no way releases Member States from the obligation to comply with a provision still in force . The directive only provides the victim with the possibility to avail himself of special liability regimes when they are limited to a particular sector of production , or of another contractual or non-contractual liability regime , when it is based on grounds different from that it establishes , or the damage does not fall within its scope of application . This is the case of a defective products regime which allows compensation for damage caused to goods intended for professional use, although the directive excludes it  or provides, in particular, for the transfer to the supplier of the liability for fault of the producer . In such a case, the possibility for the victim and/or the person whose liability is incurred under another liability regime, to incur the liability of the producer on the basis of the directive, must necessarily be preserved .

Article 7 of the directive lists the grounds for exemption which, besides the fault of the victim , temper the principle of the no-fault liability of the producer of a defective liability, enshrined in Article 1. To be exempt from liability, the producer must prove: that he did not put the product into circulation; that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect came into being afterwards; that the product was neither manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distributed by him in the course of his business ; that the defect is due to compliance of the product with mandatory regulations issued by the public authorities; that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered; or, in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product. Exhaustively listed, these grounds of exemption must, according to the Court of Justice, be strictly interpreted, to safeguard the interest of victims of damage caused by a defective product .

Article 7 of Directive No 85/374 refers to the putting into circulation of the product as a cause of exemption, and in Article 11, as the starting point of the ten-year period after which the victim's right to compensation is extinguished. In the absence of a definition by the texts, the Court of Justice has clarified the concept.

According to the Court, the benefit of the exemption based on the absence of putting into circulation referred to in Article 7 (a) of the directive can only be claimed by the producer if the product has been removed from the manufacturing process by a third party, or has been used against its will, in particular before the end of the manufacturing process, or for private purposes, which is clearly not the case when it was used in the course of a concrete service, of a medical nature, consisting in preparing a human organ for transplantation and the damage caused to it results from this preparation .

Within the framework of Article 11, the Court considered that a product must be regarded as put into circulation, when it has left the manufacturing process implemented by the producer and has entered a marketing process in which it is offered as it stands to the public, to be used or consumed . In this case, the question arose as to when the product is put into circulation when the product is transferred by a producer company to a wholly-owned subsidiary and sold by it to a third party. Two arguments were made: according to the first, the putting into circulation of a product takes place when it is transferred to a person over whom the producer has no authority - which cannot therefore be its subsidiary - with only the entry of the product into the distribution chain by its delivery to the third party being significant; according to the second, the product is put into circulation as soon as it leaves the true place of production, even if it is delivered to a subsidiary of the producer. The Court of Justice finally opted for a third solution: when one of the links in the distribution chain is closely related to the producer, it is only necessary to determine whether the links between the producer and the other entity are so narrow that the concept of producer also encompasses the latter, whether or not they are separate legal entities. If the two undertakings carry out different production activities, the transfer of the product from one to the other does not entail its putting into circulation within the meaning of Article 7. Conversely, if the subsidiary merely acts as a distributor or depository of the product manufactured by its parent company, the transfer of the product from one to the other entails its putting into circulation .

Another key concept of Directive No 85/374 is the state of technical knowledge at the time of release of the product or “development risk”. Even if development risk is one of the causes of exemption from producer liability cited in the directive, Article 15 provides that, subject to compliance with a prior notification procedure, the Member States have the possibility to retain the liability of the producer, even if he proves that the state of scientific and technical knowledge at the time the product was put into circulation did not make it possible to detect the existence of the defect. This ambivalent position in fact reflects the profound disagreements between Member States regarding development risk, with some arguing that making producers bear the development risk would put an end to innovation while others, more attached to the rights of the victim, could not allow compensation for such a risk to be excluded.

Here again, the Union court has remedied the absence of a definition. The state of scientific and technical knowledge prevailing at the date when the product was put into circulation referred to in Article 7 (e) must be understood to mean the most advanced state of science and not merely practice or safety standards in the industrial sector in which the producer operates. Such knowledge is not limited to what the producer concerned was or could be concretely or subjectively aware of, but includes the objective state of scientific and technical knowledge which the producer is presumed to be aware of, provided that it was available at the time the product was put into circulation . Moreover, the Court pointed out that Article 7 (e) of the directive is opposed to national legislation requiring the producer who wishes to avail himself of the development risk exception to prove that he has taken the appropriate measures to prevent the consequences of a defective product .

  Directive No 85/374 of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJEC L 210 of 7 August 1985, 29.

 Directive No 85/374, recital 14 and Article 14: the European legislator wished to exclude nuclear damage from the scope of Directive No 85/374 of 25 July 1985, on the grounds that the responsibility for nuclear damage is already governed in all Member States by sufficient special provisions.

Case C-691/21 Cafpi SA et Aviva assurances SA v Enedis., Judgment of 24 November 2022, LawLex202200010582JBJ.

 Case C-177/04 Commission v France, Judgment of 14 March 2006, LawLex200900000732JBJ.

 Case C-327/05 Commission v Denmark, Judgment of 5 July 2007, not available in English.

 Case C-52/00 Commission v France, Judgment of 25 April 2002, LawLex200900001029JBJ; Case C-402/03  Skov Æg, Judgment of 10 January 2006, LawLex200900000690JBJ: Directive No 85/374 on liability for defective products opposes a national rule under which the supplier incurs, in addition to the cases exhaustively listed in Article 3 (3) of the directive, the no-fault liability that the directive establishes and imposes and imposes on the producer.

 Case C-358/08 Aventis Pasteur, Judgment of 2 December 2009, LawLex201100000401JBJ: in this case, the supplier, a wholly-owned subsidiary of the manufacturer, had only indicated its identity at a very late stage of the proceedings and under its former name, thus delaying its identification by the victim of the damage.

 Case C-127/04 O'Byrne, Judgment of 9 February 2006, LawLex200900000473JBJ.

 Case C-358/08 Aventis Pasteur, Judgment of 2 December 2009, LawLex201100000401JBJ.

Case C-65/20 Krone, Judgment of 10 June 2021, LawLex202100003948JBJ.

 Case C-503/13; C-504/13 Boston Scientific Medizintechnik GmbH, cited above.

 Case C-203/99 Henning Veedfald, Judgment of 10 May 2001, LawLex200900001108JBJ.

Services do not fall within the scope of the product liability directive, see CJEU Case C-65/20 Krone, Judgment of 10 June 2021, LawLex202100003948JBJ. In this case, where the question arose as to whether a service (in this case, health advice) was likely, when incorporated into tangible property (a printed newspaper), to confer a defective character on the latter because it had proved to be inaccurate and had caused damage to the health of a reader who had followed it, the Court held that the advice in question fell outside the scope of Directive No 85/374, since it constituted a service which did not concern the presentation or use of the newspaper and was therefore not one of the elements intrinsic to the newspaper, which alone make it possible to assess whether the product is defective.

 Case C-52/00 Commission v France, cited above: by covering damages under 500 Euros under Article 1386-2 of the Civil Code, the French legislator breaches its obligations under the Directive of 25 July 1985 on liability for defective products.

 Case C-154/00 Commission v Greece, Judgment of 25 April 2002, LawLex200900000611JBJ and Case C-52/00 Commission v France, cited above.

 Case C-183/00, María Victoria González Sánchez, Judgment of 25 April 2002, LawLex200900000752JBJ.

 E.g. the warranty against hidden defects or fault, Case C-52/00 Commission v France, cited above.

 Case C-183/00 Sánchez, cited above: the victim of damage caused by a defective product cannot rely on the provisions of his national law which are more favorable than those of Directive No 85/374, when the provisions in question arose from a general system of liability having the same foundation as that laid down by the directive.

 Case C-285/08 Moteurs Leroy Somer, Judgment of 4 June 2009, LawLex201100000469JBJ.

 Case C-285/08 Moteurs Leroy Somer, cited above. 

 Case C-495/10 Besançon University Hospital Centre, Judgment of 21 December 2011, LawLex201200000639JBJ.

Directive No 85/374, Article 8 (2): “The liability of the producer may be reduced or disallowed when, having regard to all the circumstances, the damage is caused both by a defect in the product and by the fault of the injured person or any person for whom the injured person is responsible.”

  Case C-503/13; C-504/13  Boston Scientific Medizintechnik GmbH, Judgment of 5 March 2015, LawLex201500000272JBJ, for cardiac pacemakers and automatic implantable defibrillators.

  The exception based on the producer's lack of economic interest in the manufacture of the product implies the pursuit of a purely voluntary activity. A service of a medical nature does not meet this requirement, even if it is not invoiced to the victim of the damage, when it is financed by public funds, Case C/203-99 Veedfald, Judgment of 10 May 2001, LawLex200300003127JBJ.

 Case C-203/99 Henning Veedfald, cited above

 Case C-300/95 Commission v United Kingdom, Judgment of 29 May 1997, LawLex200900002170JBJ.

 Case C-52/00 Commission v France, cited above

 Case C-503/13; C-504/13 Boston Scientific Medizintechnik GmbH, cited above, LawLex201500000269JBJ.

 Case C-52/00 Commission v France, Judgment of 25 April 2002, LawLex200900001029JBJ.

A service provider who uses defective devices or products which have caused injury to the beneficiary of the service as part of the care provided in hospitals does not have the status of producer and cannot be held liable on the basis of the directive: Case C-495/10 Centre hospitalier universitaire de Besançon, Judgment of 21 December 2011, LawLex201200000639JBJ.

Case C-264/21 Keskinäinen Vakuutusyhtiö Fennia, Judgment of 7 July 2022, LawLex202300000938JBJ.

Case C-157/23 Ford Italia SpA, Judgment of 19 December 2024, LawLex202500000865JBJ, adding that a person who does not manufacture vehicles, but merely buys them from the manufacturer in order to distribute them in another Member State, may be considered a ”producer”, within the meaning of Article 1 of Directive 85/374, if, in accordance with Article 3(1) of that directive, it presented itself as such by putting its name, trademark or other distinguishing feature on the vehicle in question, thus giving the impression of being involved in the production process or of assuming responsibility for it.

Directive No 2024/2853 of 23 October 2024 on liability for defective products and repealing Directive No 85/374 of 25 July 1985 , applies to products placed on the market or put into service after 9 December 2026 (Art. 2(1)). With maximum harmonization , it aims to strengthen the level of protection of consumers' health and property on the one hand, by taking into account developments related to new technologies, in particular artificial intelligence (AI), new business models in the field of the circular economy and new global supply chains, and on the other hand, by consolidating the case law of the Court of Justice.

Whereas Directive No 85/374 defined “product” as all movables, even though incorporated into another movable or into an immovable" by extending the concept to raw materials, software - with the exception of free and open-source software developed or provided outside the course of a commercial activity  - and “digital manufacturing files”, which constitute “a digital version of, or digital template for, a movable which contains the functional information necessary to produce a tangible item by  enabling the automated control of machinery or tools”.

Article 4 goes on to define the terms “related service”  and “component” , which, when defective, entail the manufacturer's liability as of right where they have been incorporated or interconnected under its control  (Art. 8(1)b)).

Also specified are the concepts of “economic operator” (which refers to “economic operator’ means a manufacturer of a product or component, a provider of a related service, an authorized representative , an importer, a fulfillment service provider  or a distributor), “online platform” and “substantial modification”  all referred to in Article 8 of the directive, which extends the list of persons liable for defective products.

2) Economic operators liable for defective products

Article 8 reiterates the principle of the automatic liability of the manufacturer of a defective product (Art. 8(1)(a)). This text now refers to the “manufacturer of a defective component, where that component was incorporated into or interconnected with a product under the manufacturer's control and caused that product to be defective, and without prejudice to the liability of the manufacturer referred to in point (a)” (Art. 8, para. 1, b)) and, “in the case of a manufacturer of a product or component established outside the EU, and without harm to the liability of that manufacturer: (i) the importer of the defective product or component; (ii) the authorized representative and (iii) where there is no importer established within the Union or authorized representative, the fulfillment service provider” (Art. 8(1) (c)).

Article 8(2) also assimilates to a manufacturer “[a]ny natural or legal person that substantially modifies a product outside the manufacturer’s control and thereafter makes it available on the market or puts it into service”.

Article 8(3) takes up the principle of the subsidiary liability of the distributor of the defective product, in the absence of identification of the manufacturers referred to in Article 8(1)  and Art. 8(4) regards as such a distributor any “provider of an online platform that allows consumers to conclude distance contracts with professionals and that is not an economic operator, provided that the conditions set out in Article 6(3) of Regulation (EU) 2022/2065 are met”, i.e. “where such an online platform presents the specific information or otherwise enables the specific transaction in question in such a way that an average consumer may believe that the information, or the product or service that is the object of the transaction, is provided either directly by the online platform or by a recipient of the service acting under its authority or control”.

Finally, Article 8(5) provides that where none of the persons referred to in paragraphs 1 to 4 can be held liable, Member States are free to resort to existing national sectoral compensation schemes to  appropriately compensate the victim for the damage caused by the defective product.

Furthermore, Article 12(1) provides that where several economic operators are liable for the same damage, they can be held jointly and severally liable, while paragraph 2 of the same article regulates recourse between certain manufacturers. Thus, a manufacturer who incorporates a defective software component is not entitled to take action against the manufacturer of that defective component if: a) the latter was, at the time the software component was placed on the market, a micro-enterprise or small enterprise, within the meaning of the Annex to Commission Recommendation 2003/361/EC; and b) if it has contractually agreed with the manufacturer of the defective software component to waive that right.

And finally, Article 14, which deals with the right of recourse states that in cases where “more than one economic operator is liable for the same damage, an  economic operator that has compensated the injured person shall be  entitled to pursue remedies against other economic operators liable pursuant to Article 8 in accordance with national law”.

As well as any natural person who has suffered damage caused by a defective product, Article 5(2) now entitles to compensation any person who has succeeded to or has been subrogated in the rights of the victim or any person acting on behalf of one or more victims.

Article 6(1) specifies that the right to compensation applies to: a) “death or personal injury, including medically recognized damage to psychological health”; b) “damage to or destruction of property”, excluding (as under the previous directive) the defective product itself and goods used exclusively for professional purposes, a third exception now being ‘the product damaged by a defective component, which is integrated in or interconnected with a product’; (c) - a new assumption - “the destruction or corruption of data not used for professional purposes”.

Article 6(2) adds that the right to compensation covers all material losses resulting from the damage referred to in paragraph 1 and cover non-material losses resulting from the damage insofar as they can be compensated for under national law.

Article 7(1) reiterates the traditional definition of a defective product, which refers to a product that does not provide the safety that a person is entitled to expect “or that is required by EU or national law” , while paragraph 2 lists the circumstances that must be taken into consideration when assessing the defect, including: (a) the presentation and the characteristics of the product, including  its labelling, design, technical features, composition and packaging  and the instructions for its assembly, installation, use and  maintenance, (b) reasonably foreseeable use of the product, (c) the effect on the product of any ability to continue to learn or  acquire new features after it is placed on the market or put into  service, (d) the reasonably foreseeable effect on the product of other products that  can be expected to be used together with the product, including by means  of inter-connection, (e) | the moment in time when the product was placed on the market or put  into service or, where the manufacturer retains control over the product  after that moment, the moment in time when the product left the control  of the manufacturer, (f) relevant product safety requirements, including safety-relevant cybersecurity requirements, (g) any recall of the product or any other relevant intervention relating  to product safety by a competent authority or by an economic operator  as referred to in Article 8, (h) the specific needs of the group of users for whose use the product is intended and (i) in the case of a product whose very purpose is to prevent damage, any failure of the product to fulfill that purpose.

As evidence is at the heart of the system established by the directive, two articles are devoted to it, one dedicated to the disclosure of evidence, the other to the burden of proof.

Taking note of the difficulties that the claimant may encounter in consulting and understanding information relating to the method of manufacture and operation of a product, often at a great disadvantage compared to the manufacturers, Article 9 aims to facilitate the claimant's access to evidence for use in court, provided that such access is limited to what is necessary and proportionate, and taking into account the legitimate interests of all parties concerned, including third parties, particularly with regard to the protection of confidential information and trade secrets.

Furthermore, in order to lighten the burden of proof on the claimant, who is required to demonstrate the defectiveness of the product, the damage suffered and the causal link between the defect and the damage ,  Article 10 establishes a number of rebuttable presumptions (Art. 10(5).

The defectiveness of the product is thus presumed where (a) the defendant fails to disclose relevant evidence pursuant to Article 9(1) of the directive , (b) the claimant demonstrates that the product does not comply with mandatory product safety requirements laid down in Union or national law  that are intended to protect against the risk of the damage suffered by the injured person; or (c) the claimant demonstrates that the damage was caused by an obvious malfunction of the product during reasonably foreseeable use or under ordinary circumstances (Article 10(2)).

The causal link between the product defect and the damage is presumed “where it has been established that the product is defective and that the damage caused is of a kind typically consistent with the defect in question.” (Art. 10(3)).

Article 10(4) further provides that a national court must presume the defectiveness of the product or the causal link between its defectiveness and the damage, or both, where, despite the disclosure of  evidence in accordance with Article 9 and taking into account all the relevant circumstances of the case: (a) the claimant faces excessive difficulties, in particular due to  technical or scientific complexity, in proving the defectiveness of the  product or the causal link between its defectiveness and the damage, or  both; and (b) the claimant demonstrates that it is likely that the product is  defective or that there is a causal link between the defectiveness of  the product and the damage, or both.

6) Grounds for exemption or limitation of liability

Article 11(1) (a) to (f) lists the traditional grounds for exemption. To be exempted from liability, an economic operator liable under the directive must prove: (a) in the case of a manufacturer or importer, that it did not place the product on the market or put it into service, (b) in the case of a distributor, that it did not make the product available on the market, (c) that it is probable that the defectiveness that caused the damage did  not exist at the time the product was placed on the market, put into  service or, in the case of a distributor, made available on the market, or that that defectiveness came into being after that moment, (d) that the defectiveness that caused the damage is due to compliance of the product with legal requirements; (e) that the objective state of scientific and technical knowledge at the  time the product was placed on the market or put into service or during  the period in which the product was within the manufacturer’s control  was not such that the defectiveness could be discovered; (f) in the case of a manufacturer of a defective component, as referred  to in Article 8(1), first subparagraph, point (b), that the  defectiveness of the product in which that component has been integrated  is attributable to the design of that product or to the instructions  given by the manufacturer of that product to the manufacturer of that  component; (g)  in the case of a person that modifies a product as referred to in Article 8(2), that the defectiveness that caused the damage is related  to a part of the product not affected by the modification.

Article 11(2) provides, however, that, by way of derogation from Article 11(1)(c), no exemption is possible if the defect in a product, under the control of the manufacturer, is due to: a related service (Art. 11(2)(a)); software, including software updates or upgrades (Art. 11(2) b)); a lack of software updates or upgrades necessary to maintain safety (Art. 11(2) c)); a substantial modification of the product (Art. 11(2)(d)).

Article 13 reiterates the rule that fault on the part of the third party does not constitute a partial or complete exoneration from liability (13(1)) , unlike fault on the part of the injured person (13(2) . Similarly, Article 15 reiterates that no contractual stipulation or national law may limit or remove the liability of an economic operator under the directive.

Finally, Article 18 moderates the exemption for development risk, referred to in Article 11(1)(e), as under the previous directive, leaving it up to the Member States to retain, introduce or amend the existing measures in their legal systems under which economic operators are liable ”even if they prove that the objective state of scientific and technical knowledge at the time the product was placed on the market or put into service or during the period in which the product was within the  manufacturer’s control was not such that the defectiveness could be discovered" with any changes in legislation which, under the terms of Article 18(3), being limited to: a) specific categories of products; b) justified by objectives of public interest; and c) proportionate.

Article 16 takes up the principle of the three-year limitation period  and Article 17(1) that of the ten-year expiry period , but now provides, in paragraph 2, that where an injured person has not been able to bring proceedings within the ten-year expiry period, due to the latency  of a personal injury, his or her right to compensation will expire after a period twenty-five years, unless the person has in the meantime brought proceedings against an economic operator liable under Article 8.

Finally, Article 22 provides that Member States have until 9 December 2026 for the transposition of the directive into their national law.

Article 21: “Directive 85/374/EEC is repealed with effect from 9 December 2026.  However, it shall continue to apply with regard to products placed on the market or put into service before that date”.

Article 3: “Member States shall not maintain or introduce, in their national law,  provisions diverging from those laid down in this Directive, including more stringent or less stringent provisions, to achieve a different  level of protection for consumers and other natural persons, unless otherwise provided for in this Directive”.

Art. 7(3): “A product shall not be considered to be defective for the sole reason that a better product, including updates or upgrades for a product, has already been or is subsequently placed on the market or put into service”.

Art. 10(1), reproducing Article 4 of Directive No 85/374.

Art.9(1): "Member States shall ensure that, at the request of a person who is  claiming compensation in proceedings before a national court for damage  caused by a defective product (the ‘claimant’) and who has presented  facts and evidence sufficient to support the plausibility of the claim  for compensation, the defendant is required to disclose relevant  evidence that is at the defendant’s disposal, subject to the conditions  set out in this Article.

Article 13(1): “Without  prejudice to national law concerning rights of contribution or  recourse, Member States shall ensure that the liability of an economic  operator is not reduced or disallowed where the damage is caused both by  the defectiveness of a product and by an act or omission of a third  party”.

Article 13(2): “The liability of an economic operator may be reduced or disallowed  where the damage is caused both by the defectiveness of the product and  by the fault of the injured person or any person for whom the injured  person is responsible”.

Art.16(1): “Member States shall ensure that a limitation  period of three years applies to the initiation of proceedings to claim  compensation for damage falling within the scope of this Directive. The  limitation period shall run from the day on which the injured person  became aware, or should reasonably have become aware, of all of the  following: (a) the damage; (b) the defectiveness; (c) the identity of the relevant economic operator that can be held liable for that damage under Article 8”.

Art. 17(1): “Member States shall ensure that an injured person  is no longer entitled to compensation pursuant to this Directive upon  the expiry of a period of 10 years, unless that injured person has, in  the meantime, initiated proceedings against an economic operator that  can be held liable pursuant to Article 8. That period shall run from: (a) the date on which the defective product which caused the damage was placed on the market or put into service; or (b) in the case of  a substantially modified product, the date on which that product was  made available on the market or put into service following its substantial modification”.

Art. 4(3): “a digital service that is integrated into, or inter-connected with,  a product in such a way that its absence would prevent the product from  performing one or more of its functions"

Art. 4(4): “means any item, whether tangible or intangible, raw material or related  service, that is integrated into, or inter-connected with, a product”

“Manufacturer’s control” means that: (a) the manufacturer of  a product performs or, with regard to actions of a third party, authorizes or consents to: (i) the integration, inter-connection or supply of a component, including software updates or upgrades; or (ii) the modification of the product, including substantial modifications; (b) the manufacturer of a product has the ability to supply  software updates or upgrades, themselves or via a third party”.

 An “authorized representative” is “any natural or legal person  established within the Union who has received a written mandate from  a manufacturer to act on that manufacturer’s behalf in relation to  specified tasks”.

“Fulfillment service provider” means “any natural or legal person  offering, in the course of a commercial activity, at least two of the  following services: warehousing, packaging, addressing and dispatching  of a product, without having ownership of that product, excluding postal  services as defined in Article 2, point (1), of Directive 97/67/EC of  the European Parliament and of the Council (19), parcel delivery  services as defined in Article 2, point (2), of Regulation (EU) 2018/644  of the European Parliament and of the Council (20), and any other  postal services or freight transport services”.

“Substantial modification” is defined as “a modification of a product after it has been placed on the market or put into service: (a) that is considered substantial under relevant Union or national rules on product safety; or (b) where relevant Union or national rules on product safety lay down no threshold on what  is to be considered a substantial modification, that: (i) changes the product’s original performance, purpose or type, without that change  having been foreseen in the manufacturer’s initial risk assessment; and (ii) changes the nature of the hazard, creates a new hazard or increases the level of risk”. 

Art 8(3): “Member States shall ensure that, where an economic operator from among  those referred to in paragraph 1 and established in the Union cannot be  identified, each distributor of the defective product is liable where: (a) the injured person requests that distributor to identify an economic  operator from among those referred to in paragraph 1 and established in  the Union, or its own distributor that supplied it with that product;  and (b) that distributor fails to identify an economic operator or its own distributor, as referred to in point (a), within one month of receiving  the request referred to in point (a)”.

French Consumer Law

646. Directive No 85/371

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

646. Directive No 85/371

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise