1. Inadequate odorization of biomethane in the light of the Product Liability Directive GESP Research Day 19 September 2013 University of Groningen

2. Overview
“What’s in a smell?” Risks and consequences of inadequate odorization of biomethane. (publication in Journal for Renewable Energy Law & Policy)
Product Liability Directive
Conclusion

3. source: Endress + Hauser

4. Odorization of Biomethane
Biomethane v. Natural gas
Criteria: 10 – 40 mg/Nm3 THT (C4H8S)
Odor masking by Limonene (C10H16)
source: phmsadotc.sabanow.net

6. Who is liable? Actors: Injured person / injured parties Supplier
Distribution System Operator
Biogas producer / biomethane injector
Liability regime differs per Member State
the Product Liability Directive

7. Product Liability Directive
Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.
Last amended by Directive 1999/34/EC
Main objective: harmonize consumer protection
The principle of liability without fault

8. Scope of the Directive Movable products
Exclusion of agricultural products and game (products of hunting); unless these products have been processed in an industrial nature
Is Biomethane a movable product?
Art. 2 includes electricity, not gas
Product: a thing that is produced during a natural, chemical or industrial process (Oxford)
Movable: able to be taken from one place to another (Oxford)

9. Defective product? Expectation test Case law
Presentation of the product;
The use to which it could reasonably be expected that the product will be put;
The time when the product was put into circulation.
Case law
Infected blood cases (UK & the Netherlands)

10. Development risks defence I
Art. 7 (e): the state of scientific and technical knowledge at the time the product was put into circulation was not enable the existence of the defect to be discovered.
Case law
German water bottle case

11. Development risks defence II
High Court (UK):
Unknown risks are unlikely to qualify by way of defence within art. 6 (expectation test). They may, however, qualify for art. 7 (e).
Known risks do not qualify within art. 7 (e), even if unavoidable in the particular product. They may qualify within art. 6 if fully known and socially acceptable.

12. Conclusion Producer can be held liable Producer ≠ injector
However, not in all cases
Producer ≠ injector
Unclear who can invoke Development Risks defence
Can the supplier or the DSO also (partially) be held accountable?

13. Thank you for your attention Questions?
Daisy G. Tempelman, L.LM
+31 (0)50 –