EU legislation: Liability for defective products
According to EU law, companies can be held liable for injuries caused by defects to products they
place on the market. Although the EU importers are responsible, there are situations that claims are
passed on to their suppliers.
Subject
Liability for damage
caused by defective
products
Product
All movable products
Involves
How to comply
The possible passing
Meet the product
on of claims for injuries safety standards
from you EU client to
you
If you are an exporter of products, you have to take into
account that you can be held responsible for injuries caused
by defects to your products. This is called product liability.
Injuries caused by defects to your products can damage your
name and corporate image. EU consumers may also require
financial compensation for injuries caused by defective
products.
The EU legislation on product liability holds your EU client
responsible for injuries caused by imported defective
products. However, your EU client may pass on a claim filed
by an injured EU consumer to you. This documents intends to help you to avoid the risks of product
liability.
Outline of EU legislation
Directive 85/374/EC lays down the principles of product liability in the EU.
Which products?
The legislation comprises all movables, (all goods liable to movement) even though incorporated in
another movable, or into an immovable. Examples of products are consumer products (ranging from
cars to cots, from tyres to toys, including products that achieved CE marking), pharmaceuticals and
electricity. Primary agricultural products (food in its raw state, e.g. meat, cereals, fruit and
vegetables, fisheries) and game (the flesh of) certain birds and animals which are killed for sport) is
included.
What is a defective product?
Your product will be considered defective when it is not as safe as EU consumers might expect. This
means that a product will not be considered defective solely on the basis of poor quality or because
a safer version is on the market. All circumstances are taken into account when deciding whether a
product is defective, including:

The manner in which a product is marketed;

Any instructions or warnings that are given with it;

What might reasonably be expected to be done with it;

The time the producer supplied the product.
When is your EU client liable?
An EU client can be held responsible if the product was defective and the defect caused the injury.
Fault or negligence of your EU client is not of importance. The relationship between the defect in the
product and the injury is called the causal relationship. The EU consumer has to prove this causal
relationship. If he can not prove it, your EU client can not be held responsible. If a causal
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EU legislation: Liability for defective products
relationship can be proved, your EU client’s liability may be reduced when the injured consumer was
at fault.
Injuries for which compensation can be claimed include death, personal injury and damage to
private property other than the defective product itself. The amount of loss or damage needs to be
500 Euros or more. EU Member States can individually set limits for the total liability for damage
resulting from death or personal injury. This limit may not be less than 70 million Euros.
Furthermore, EU Member States may govern compensation for non-pecuniary loss (e.g. pain and
suffering).
In which cases will a claim be passed on to you?
Your EU client will pass on a claim to you if he expected a certain level of product safety (often
established in agreed contracts) and this expectation was infringed. For example, if you declare in
written that your products are produced conform EU safety requirements and they do not contain
certain dangerous substances, your EU client may expect this is true. Furthermore, your EU client
can expect a certain quality level that is guaranteed by a certificate. If it appears that you provided
your EU client with a false or incorrect certificate, you infringed your EU client’s expectations.
Another example of infringement is to not deliver a constant quality.
Example: DMF in leather products
As of 1 May 2009 it is not longer allowed to bring leather products that contain Dimethyl Fumarate (DMF) on
the EU market. DMF can cause severe skin allergies to consumers who come into physical contact with these
products. EU clients that bring leather DMF-containing products on the EU market can be held responsible for
damage (skin allergy) caused by the DMF. To make sure that no DMF is present in the products they bring on
the EU market, your EU client can require a written statement of conformity. If at a later stage a consumer will
get a skin disease caused by DMF present in the products you supplied, your EU client may pass on any claim
to you.
In which cases can liability claims not be passed on to you?






You did not supply the product (e.g. the product was stolen or is a false copy of your product);
The defect causing the injury came into being after the product was supplied by you (e.g. the
product became defective because somebody further on in the supply chain handled it
carelessly);
The product was not supplied in the course of a business/for profit making (e.g. the product was
donated);
The defect was the inevitable result of compliance with law, e.g. EU safety regulations;
The state of scientific and technical knowledge at the time when you supplied the product was
not as such that can be expected from you to have discovered the defect if it existed in your
products while they were under your control;
In the case you exported a component, you may be successful in defending yourself if you are
able to show that the defect was due to the design of the finished product or to defective
specifications given to you by the producer of the finished product.
What to do to reduce the occurrence of liability claims?




You as a producer or exporter must give high priority to quality and product safety. Make sure
your products comply with the safety requirements as laid down in EU legislation. For example
general product safety legislation, general food safety legislation or standards that specifically
apply to your product sector (e.g. toys, chemicals, cosmetics and machinery);
Review your quality control, quality assurance and testing procedures. Check if all stages of
production (design, manufacture, presentation and marketing) help to ensure that only safe
products reach the EU market. Perhaps the implementation of an accredited quality
management system (e.g. ISO 9001) will help you to perform better in this area;
Carefully formulate labels, instructions for use and disclaimers (e.g. CE marking);
Review your contractual arrangements with your EU client and others with whom you have
relevant contracts (e.g. suppliers of components) to seek indemnity from other in the event of
liability (e.g. delivery agreements that unmistakably regulate where your responsibility ends and
where the EU client’s (or other party’s) responsibility begins);
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EU legislation: Liability for defective products

Assess whether an insurance cover, including product liability, may be an appropriate tool for
your business.
The Chinese milk scandal: effects of defective products on the EU market
The Chinese milk contamination case provides a good illustration of the effects of ‘defects’ to imported
products on EU market behaviour. In 2008 it was found that many Chinese babies had fallen ill as a result of
the contamination of Chinese milk products with melamine.
The scandal quickly spread to milk-based products manufactured by international companies worldwide (e.g.
chocolate products, dairy products, baby formula, milk based confectionary production, biscuits, candies
and beverages). EU governments had Chinese milk-derived ingredients and finished products containing milk
recalled from supermarket shelves. The breach of safety standards in China attracted liability and
reputational risk of companies in the EU. The costs for these companies were significant.
Some years later, Chinese produced milk and dairy products are still banned from EU and other international
markets (USA, Japan, India). Furthermore, the safety of processed products such as chocolate and chocolate
products, candies, confectioneries and food preparations with milk as an ingredient, is still doubted by EU
importers. Moreover, the scandal raised (again) the attention to the quality of Chinese manufactured
products generally (resulting in increased controls).
The Chinese milk contamination shows that EU clients will try to avoid the risks of product liability as much as
possible. To become or stay an attractive trading partner, make sure you do the same and take as much as
possible quality management measures throughout all stages of production.
Related documents
Please find below an overview of other legislative and non-legislative requirements that are of relevance. Some
of the requirements are shortly highlighted in this document. More details however, can be found in the CBI
database under the following document titles:
Legislation:




EU legislation: Dimethyl Fumarate (DMF) in consumer products
EU legislation: General product safety
EU legislation: General Food Law
EU legislation on CE-marking: Instruction on implementing CE-marking
Non legislation:

International management system: ISO 9001 on quality management
Last updated: May 2012
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May 2013
If you are an exporter of consumer products, food or similar products, it is strongly recommended to make sure
that your products are safe to avoid product liability claims for defective products.
In principle it is your EU buyer that can be held responsible for damage caused by defects to your products.
However, he can pass on a claim to you, which means the EU legislation on product liability is also of relevance
for you.
This document explains in which cases your EU buyer will pass on a liability claim to you and what you can do to
prevent these situations and defend yourself against such claims..
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EU legislation: Liability for defective products
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Cut flowers and foliage
Rosa, Dianthus, Orchids, Dendranthema, Gladiolus, flowers grown from bulbs and other fresh cut flowers
Summer flowers
Tropical flowers
Prepared cut flowers
Foliage
Fishery products
Fresh, chilled or frozen fish and fish fillets
Fresh, chilled or frozen crustaceans and cephalopods
Fresh, chilled or frozen molluscs
Prepared or preserved fish and fish fillets
Prepared or preserved crustaceans and cephalopods
Prepared or preserved molluscs
Food ingredients
Coffee
Tea
Cocoa (inc. Cocoa butter, oil and fat)
Edible nuts
Dried fruit and dried vegetables
Fruit juices and concentrates
Canned fruit and vegetables
Frozen fruit and vegetables
Jams, jellies, purees and marmelades
Honey and other bee products
Natural colours
Natural thickeners
Thickeners
Rice
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EU legislation: Liability for defective products
Pulses
Spices
Herbs (dried)
Raw cane sugar
Refined sugar, fructose and molasses
Conventional oils - niche markets (palm, sunflower, cocos - focus on virgin, organic, fair trade)
Specialty oils (peanut, mais, sesame, sheabutter, mango butter, rich omega 3 oils)
Olive oil (focus on organic etc)
Oil seeds
Fresh fruit and vegetables
Tropical fruit
Off-season fruit
Exotic fruit
Tropical vegetables
Off-season vegetables
Natural ingredients for
cosmetics
Vegetable derived oils, fats and waxes
Essential oils and oleoresins
Vegetable saps and extracts
Raw plant material
Colouring matter
Natural ingredients for
pharmaceuticals
Medicinal and aromatic plants
Vegetable saps and extracts
Vegetable alkaloids
Timber
Timber (planks, boards, veneer)
Timber building materials (doors, flooring)
Timber Garden products (incl. garden furniture)
Consumer
Wine
Wine
Domestic furniture
Upholstered seating
Non-upholstered seating
Dining and living room furniture
Kitchen furniture
Bedroom furniture
Home office furniture
Other furniture
Furniture parts
Apparel
Bodywear
Knitted and woven clothing
Sports clothing
Leather clothing
Babies clothing
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EU legislation: Liability for defective products
Home decoration
Candles
Woodware
Wickerwork
Artificial flowers & fruits
Ceramics
Glassware
Metalware
Plasticware
Paperware
Cutlery
Home and furnishing textiles
Household textiles
Furnishing textiles
Office and school supplies
Paper-based items
Filing and storage products
Writing and drawing instruments
Presentation and planning materials
Office and desk accessories
Greeting cards
Cases and satchels
Office furniture
Industrial
Automotive parts and
components
Parts, components and accessories for all kinds of common automotive vehicles
All kinds of machinery that is used in agriculture and horticulture
Parts for construction equipment
Parts for lifting and materials handling equipment
Pipes and process
equipment
Process instruments
Process equipment
Metal pipes and fittings
Plastic pipes and fittings
Pumps
Valves
Electronic components
Semiconductors
Embedded Systems
Sensors and Microsystems
Passive components
Electromechanical components and connector technology
Electronic Manufacturing Services (EMS)
Displays
Power supplies
Assemblies and subsystems (including modules)
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EU legislation: Liability for defective products
ED/EDA, testing and measurement
Energy Efficient Lighting (EEL) Products
Engineering products
Electric Drives
Moulds, magnets and elevators
(Parts) of Transmission
Hydraulics
Pneumatics
Tooling and workpiece holders
Medical & Laboratory
Devices
Medical disposables
Medical devices
Dental devices
Laboratory devices
Medical furnitue
Medical apparel
Personal protective
equipment
Full body protection
Hand and arm protection
Foot and leg protection
Air purification
Descender devices
Head protection
Hearing protection
Eye protection
Paints & other coatings
Formulations dissolved in water
Formulations not dissolved in water
Pigments
Additives
Resins
Sanitary ware and ceramic
tiles
Sanitary ware
Ceramic tiles
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KPO
Call centres
Digitisation
Web services
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Finance and accounting services
Research and Development
Procurement
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EU legislation: Liability for defective products
ITO services
Finance & banking
Healthcare
Wholesale & Retail
Government & Public sector
Telecom
Manufacturing
Tourism
Adventure travel
Wildlife travel
MICE
CBT
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