Effective consumer protection and traditional liability rules

The lack of consumer protection determined by Directive 85/374/EEC contrasts with the high level of attention for food in product safety discipline.

Product safety is the second pillar of European product policy and complements the legislative approach to this issue. It represents the European system for preventing consumer injuries, while responsibility has a repressive function. For product safety, there is a general discipline,[1] applicable to each type of product, and different disciplines for specific types of products.

One of these specific disciplines, introduced by Regulation 178/2002/EU, is dedicated to foods and feeds. This Regulation is characterized by the aim of realizing a high level of food safety in order to ensure effective protection for consumers. It considers carefully food peculiarities and obliges both private and public authorities to guarantee circulation only for safe food.

In particular, Sec. IV contains norms listing duties for food business operators. They are directly invested of ensuring food safety because they are “best placed to devise a safe system for supplying food and ensuring that the food it supplies is safe; thus, it should have primary legal responsibility for ensuring food safety.”

Art. 14 is opened with a severe statement: “Food shall not be placed on the market if it is unsafe” and art. 17, entitled “Responsibilities”, clarifies the position of duties on food business operators in order to ensure that “foods or feeds satisfy the requirements of food law which are relevant to their activities and shall verify that such requirements are met.”

Thus, these articles form the basis of the prohibition for food business operators to put unsafe food into circulation.

This rule is mitigated by the compliance to European or National food law. But the respect of standards does not bar the public authorities from taking appropriate measures, if necessary.

The definition of unsafe food is centred on the concept of risk,[2] defined by art. 3, number 9), as “a function of the probability of an adverse health effect and the severity of that effect, consequential to a hazard”. Besides, Hazard means, art. 3 n. 14), “a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect”.

Moreover, the absence of a reasonable level of risk, compliant with the circulation of the product, is particularly relevant. It makes it possible to consider that no level of risk to food safety is acceptable. In this sense European discipline of food safety seems to adopt the zero-risk criterion.

Those elements allow to affirm that there is not a reasonable level of risk for foods, unless it is determined by an erratic use of the product or unless the producer is able to adequately inform consumers how to avoid the risk of injuries. But this information cannot overcome zero risk criterion. In fact, it has to be suitable to the neutralization of risks; putting the consumer in front of the option between eating the food or not, exposing himself to the risk or avoiding it, is not sufficient.

The adoption of the zero-risk criterion, the relevance of precautionary principle and producers’ duty after putting the product into circulation highlight the contradiction between directive 85/374/EEC and Regulation 178/2002/ EC. In fact, the first one is centred on the relational notion of defect that reminds the reasonable level of safety for products, introduces state-of-the-art defence and limits producer liability to the moment when the product is put into circulation.

The contradiction between these two disciplines determines the question of effective protection for consumers. In fact, even if food safety disciplines introduce severe duties for producers, the violation of those duties does not ensure damages for consumers. In solving this problem, the possible answers are two: to suggest an evolutive interpretation of liability for defective products; or, to find other liability rules applicable to defective food products when Directive 85/374/EEC does not provide adequate protection.

The first solution has really tight spaces. In fact, Directive 85/374/EEC is characterized by a compromise nature and realizes balance between producers’ and consumers’ interests. In this sense, concept of defect, exonerating circumstances and limitation, and prescription periods have the function of realize the aim of tempering strict liability for the producer. So, there is not any space for an evolving interpretation, because each extension of the liability rule violates the purpose of balance of European legislator. Finally, this perspective is precluded by art. 21 Regulation 178/2002/EC and by art. 17 Directive 2001/95/EC. Those norms establish that product safety disciplines are without prejudice for Directive 85/374/EEC.

So, the only solution to this lack of protection for consumers consists in finding other liability rules applicable in case of failure of Directive 85/374/EEC. This perspective has to be verified according to art. 13 of the Directive. It clarifies that “This Directive shall not affect any rights which an

injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified”.

In this sense, the CJEU has stated that art. 13 allows the application of Member States’ liability systems different from producer liability rule, if they are special, meaning referred to particular kinds of products, or if they are inspired by different principles such as fault or warranty in latent defects.

This interpretation shows the particular character of the European harmonization of law on a producer liability theme. Even if it was funded on the exigence of reducing divergences in Member States laws concerning producer liability, it did not eliminate traditional contractual or extracontractual remedies for consumers. The European discipline has only introduced a strict liability rule and has obliged Member States to respect balance of that discipline. In fact, the European legislators wanted to ensure a level of equity and reasonableness for strict liability


See CGCE, April 25th, nn° C-52/00, CT54/00 e C-183/00, in Danno e resp. 2003, 717 e ff., which affirm, respectively in point 16, 12 e 25, that “the margin of discretion available to the Member States in order to make provision for product liability' is entirely’ determined by the Directive itself and must be inferred from its wording, purpose and structure”. In this sense, Member State has not the possibility' “of maintaining a general system of product liability' different from that provided for in the Directive” (points 21, 17 & 30); but Directive does not exclude “the application of other systems of contractual or non-contractual liability' based on other grounds, such as fault or a warranty in respect of latent defects” (points 22, 31 & 18).

The second slice of the cake 219 eliminating burden of the proof of the producer fault in consumers’ favour, but introducing a system of mitigation realizing producers’ interests.

So, traditional remedies related to warranty or fault, funded on other criteria and not involving strict liability are perfectly compatible with Directive 85/374/ EEC.

In this perspective, there is the possibility of suggesting application of traditional remedies in case of failure of the harmonized producer liability system. These remedies are not without limits or criticism, but they can bring some advantage for injured consumers, especially for food products.

In a first sense, traditional remedies are better known by national legal operators, and they can take advantage of the numerous efforts of consumer-friendly interpretations.

On the other hand, those are the only remedies for consumers when Directive 85/374/EEC excludes producer liability, as often happens for food producers.

In conclusion, the characteristics of food, which had played a fundamental role in leading cases for producer liability, impede effective protection for food consumers applying Directive 85/374/EEC. Nonetheless, the high level of attention for food safety, testified by Regulation 178/2002/EC and its duties for food business operators, highlights the need for an adequate liability system. In this sense, a return to the traditional liability rule of each Member State can be suggested in case of failure of the harmonized discipline.

  • [1] This discipline is introduced by Directive 92/59/EEC, then substituted by Directive 2001/95/EC. 2 30° whereas of Regulation 178/2002/CE. 3 Cfr. Bruno, 2003, 243. 4 Art. 14, par. 8, Regulation 178/2002/CE: “Conformity of a food with specific provisions applicable to that food shall not bar the competent authorities from taking appropriate measures to impose restrictions on it being placed on the market or to require its withdrawal from the market where there are reasons to suspect that, despite such conformity, the food is unsafe”.
  • [2] Risk is also object of a procedure of public management called “Risk analysis”. This procedure is defined by art. 3, number 10) of the Regulation, as “a process consisting of three interconnected components: risk assessment, risk management and risk communication” linked to the aim of a high level of protection for human health. Risk assessment is a scientific analysis of the entity and characteristics of the risk in four phases; risk management consists in the political exam of scientific result and the eventual adoption of public authorities’ measures; risk communication is the process of information sharing about food risks. 2 This characteristic distinguishes food safety from the general product safety. In fact, art. Directive 2001/95 defines safe product as product that “does not present any risk or only the minimum risks compatible with the product's use, considered to be acceptable and consistent with a high level of protection for the safety' and health of persons”. So, European legislator does not adopt zero-risk criterion for product different from foods. This is due to the idea that a minimum level of risk is not eliminable in modern society. The high level of technological innovation has a fundamental role in increasing social prosperity, even if it brings some risks for consumers. See Howells, 2000, 337: “the function of a safety' standard in a regulatory regime is not to remove all risks from the market, but only those not justified by the benefits derived from the product or because safer alternatives exist”. 3 This criterion has been criticised because it is not supported by adequate scientific evidences, and a minimum level of risk characterizes every food (Mazzo, 2007, 163; Sollini, 2006, 71 & ff.). But there are also opposed opinions in doctrine (see Bruno, 2003, 241 & 246) and in jurisprudence (Corte di giustizia CE, 24 ottobre 2002, n°121, in Dir. com. e scambi intemaz. 2003, 305). 4 Art. 14, par. 3, Regulation 178/2002/EC. 5 Art. 7 Regulation 178/2002/EC. 6 Art. 19 Regulation 178/2002/EC.
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