REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION PRODUCT LIABILITY AND SAFETY IN CENTRAL AND EASTERN EUROPE British Institute of International & Comparative Law Barbara Miklavčič London, 6 February 2004

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Implementation of the 85/374/EEC and 1999/34/EC directive on product liability in to Slovene law uThe Consumer Protection Act - CPA (Official Paper 14/2003) uObligation Law - OL (Official Paper ……..) v governing contractual and non-contractual liability rules, joint and several liability; ref. to Art.13 of the Directive, which allows the parallel use of special national liability systems

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Definitions: u‘product’ - ‘any movable even if it is only a part of another movable or if connected to a movable, including electricity and agricultural products ’; thus liability is extended; u‘producer’ - any participant in the production process, the importer of the defective product, any person putting their name, tarade mark or other distinguishing feature on the product, any person supplying a product whose producer cannot be identified

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION What determines the defectiveness of the product? u‘lack of safety which the consumer is entitled to expect’, taking the factors in to account: vpresentation of the product vuse to which it could reasonably put vtime when the product was put in to circulation u‘the fact that a better product was subsequently put in to circulation cannot be taken into consideration in determining the defectiveness’

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Exemptions from producers’ liability (1)? uIf he proves that vhe did not put the product into circulation vthe defect causing the damage came into being after the product was put into circulation by him vthe product was not manufactured for profit- making sale vthe product was neither manufactured nor distributed in the course of his business

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Exemptions from producers’ liability (2)? uIf he proves that vthe defect is due to compliance of the product with mandatory regulations vin case of the development risk vin the case of a manufacturer of a component of the final product that the defect is attributable to the design or instructions by the product manufacturer

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Limitation periods uno contractual clause may allow the producer to limit his liability in relation to the injured person uunder the OL the injured person has three years to seek for compensation from the day he became aware of the damage, the defect and the identity of the producer uthe producers liability expires after ten years from when he put the product into circulation

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Producers obligation for damage compensation udamage caused by death or personal injury or damage to health udamage to an item of property intended for private use other than the defective product with threshold Sit (45 Euros) vthreshold under the national liability regime is not set whatosever!! u no financial ceiling as provided by the EU Directive, Art.16 (70 million euros)

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Burden of proof uThe injured person must prove vthe actual damage vthe defect in the product BUT NOT the causal link!!!

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION If the burden of proof is on the consumer, it should be facilitated uoptions also indicated in the Green Paper on liability for defective products: vto infer a causal relationship when the victim proves the damage or defect vto establish standards of necessary proof of the 3 elements required vto impose on the producer the obligation to provide all useful documentation to facilitate the consumer to prove his cause vto make producer bear the cost of the expert op.

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Product Safety - state of play uImplications of the former system of ensuring product safety usafety testing of products by the administration authorities took place BEFORE the product was placed on the market, consumer still ‘ trust’ the market uconsumers hardly complain about product safety (approx. 2 complaints/yr)

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Product Safety - state of play ulack of surveillance of product safety, therefore no reliable statistics, voluntary recall is uncommon by producers vMonitoring of safety and conformity of electrical products u 2000 (317 samples), 2001 (184 samples), 2002 (no samples) due to lack of resources u 50% of samples, not in conformity u 25% dangerous, 8% very dangerous

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Implementation: GPSD (2001/95/EC) Directive (87/357/EEC) uGeneral Product Safety Act (Off.Paper 101/03) - replaced the old GPSA (Off.Paper 23/99) uthe new GPSA will apply from the date of accession ( ) onwards

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION General Product Safety Act u‘lays down vrequirements for the products to be placed on the market vobligations of producers and distributors vthe content and the methods of providing information to the EU vsafety surveillance, Advisory Board

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Definitions u‘product’, ‘safe product’, ‘dangerous product’, ‘product appearing other than they are’ userious risk uproducer, distributor urecall, withdrawal

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Obligations of producers and distributors uprovision of warnings and information uobligation to provide information that a product that they have placed on the market poses risks to the consumer uobligation to co-operate with the authorities in implementation of actions, necessary to avoid the risks posed by products which they supply or have supplied.

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Obligation of inspection authorities to provide info to EU uinfo on withdrawals, recalls, other measures unotification through RAPEX ucustoms surveillance; in clearing goods they may temporary suspend release of product on the market (3days) in case of goods showing characteristics of posing risk to consumers uAdvisory Board on product safety (rep. Of administrative authorities, consumers, chambers of commerce, experts)

REPUBLIC OF SLOVENIA, MINISTRY OF THE ECONOMY OFFICE FOR CONSUMER PROTECTION Barbara Miklavčič uThank you for your attention!