Tendencies in the regulation of the civil responsibility

With the appearance of the Director 99/34/CEE, who extended the regime of the responsibility by defective products of Director 85/374/CEE to the agricultural raw materials, due to the crises of the crazy cows and the case of the dioxinas, that regime of the Director of 1985, transposed to the internal legal ordering by means of Law 22/1994, of 6 of April, it is being object of a tending analysis to determine if its reform is precise and, that aspects of the same one would be seen in their case affected.

The Commission has elaborated Green Libro on the Civil Responsibility by Defective Products, of 28 of Julio of 1999, and who supposes the opening of a reflection process that will finish at the end of 2000, when the Commission presents/displays a Report on the matter. Green Libro of the civil responsibility by defective products, suggests already, in any case, some of the possible lines of reform. The burden of proof, that it will continue corresponding the victim (article 5 of Law 22/1994), can undergo a modification with respect to the present system, that would suppose or the introduction of a system of preliminary diligences to the procedure that finally establishes the consumer, or a system of expert test to support finally a priori by the manufacturer or, the one possibility cuasi investment of the burden of proof by means of the establishment of a system of generic presumptions.

The possibility of a concerned principle of the North American Right, market is anticipated share liability, face to solve the problem of the damages originated by a product made by several producers. It will be sufficient whereupon a manufacturer benefits with the sale of the product, therefore, so that him person in charge can be declared.

The possibility relative to the cover by means of insurances of this type of responsibility is very interesting, where a debate is outlined that is to determine if they are due to turn obligatory or to maintain, like until now, the voluntary character of such.

Nevertheless possibility that such position is adopted is small (anticipated already in Disposition Final 2ª of Law 22/1994, that modified article 30 of Law General for Defense of Consumers and Users), inasmuch as one of the problems that arise for Europe in the matter of defective products is the necessity to maintain a system that allows the producers to continue being competitive, something that could see affected if, to the own costs of the productive process and of sale a load of obligatory insurances is added. Different question is if, as result of this debate, the Insuring Sector is able to respond to the necessities of the market by means of economically attractive products of insurance. Another change would derive from the reflection that the Commission suggests with regard to the convenience of including other products, like real estate, in the scope of the responsibility by products, as well as contemplating specifically within the damages those that are of extrapatrimonial nature (moral and psychic damages). The Commission even suggests the possibility that protected goods those of professional use are included as, that is to say, those that they have in integrate the patrimony of the companies and that they can suffer damages by the action of a defective product.

The Commission indicates that a certain lack of transparency and information in relation to the claims derived from the regime of product responsibility exists, that can be solved by means of other imports of North American figures. Thus, the convenience of the existence of jury is indicated verdict reporters, that is to say, dedicated companies to investigate and to spread to information on judicial cases, obtained indemnifications, implied products and people in charge, etc.. Also mention in Green Libro to the obligation is made that the producers must in the U.S.A. to publish and to communicate to the Consumer Product Safety Commision the litigations derived from a defective product, a suggestion that, like the previous one, could suppose a necessity of a deep change in our present way to understand the Right and the market.

Finally, Green Libro introduces in the debate the possibility that the consumers resort to the actions of cessation next to indemnizatorias, as well as a suggestion to study the possibility of introducing famous class actions North American (joint operations) in our legal system, although leaving any mimética position respect to the system of the U.S.A. (that as the own Green Book recognizes, is in crisis), but going to continental models of proven validity, like the French (group action) or the Portuguese (public interest action).

By the sight, the propose routes of reform ahead have an ample period for their debate, where the affected sectors have the crucial mission to transmit their opinions in order to arrive, in its case, to a reform that, without jeopardizing the competitiveness of the market, improves the defense of the consumer.

Principles of the communitarian legislation by defective products

In addition to the subsanación obligation that all product salesman ties that is defective, most of the legislations prevén the civil responsibility of the manufacturer, if due to the defects or vices of these, corporal damages or injuries in the people take place, or damages or destruction of things.

The European Union, before the disparity of effective legislations in the countries members, approves Director 85/374 of 25 of 1985 July, granting to the States members a term of 3 years for the adjustment of its respective legislations to the arranged thing in this director. With great delay with respect to the anticipated term of adaptation, Spain approves Law 22/1994 of 6 of July (B.O.E. of 7 of 1994 July), in vigor from the 8 of July, that gathers the principles imposed by the European norm, which they can be transformed of the following form:

1) Designation like "defective" product to all product that does not offer the security that would legitimately be possible to hope, considering all the circumstances and, specially, its presentation, the reasonably foreseeable use of the same one, and the moment of its putting in circulation, not having to consider itself defective for the only reason that such product, later, has been put in circulation of improved form.

2) Establishment of the principle of "objective" responsibility or without fault of the manufacturer, when considering it responsible for the damages caused by the defects of its products, disappearing the negligence exigency, to be able to impute responsibility to him, so and as contemplated Law 26/1984 of 19 of July for the defense of consumers and users.

3) Extension of this objective responsibility to all person who, in the exercise of her enterprise activity, introduces a product in the European Community for her sale, rent, financial renting or any other form of distribution, thus comparing to the manufacturer and the importer.

4) the anticipated civil responsibility in the Law includes/understands the corporal assumptions of death and injuries, as well as the damages caused in things different from the own defective product, whenever the damaged thing objectively is destined to the deprived use or consumption, and in such concept have been used mainly by the harmed one, being deduced in this last case a tax exemption of 65,000 pesetas.

6) the rights of the harmed ones are extinguished after ten years of the date in which the manufacturer has put in circulation the product that caused the damage, but must exercise itself, by means of the opportune action of repair of damages and damages, within the term of prescription of three years as of the date in which the plaintiff underwent the damage, whenever she knows herself the person in charge of the damage.

5) the responsibility disappears if the manufacturer or the importer demonstrates:

a. That they had not put the product in circulation.

b. That the product had not been made for the sale or any other form of distribution with economic aims, not made, mattered, provided or distributed within the framework of a professional or enterprise activity.

c. That the defect had to that the product was elaborated according to existing imperative norms.

d. That, given the circumstances of the case, it is possible to presume that the defect that caused the damage it did not exist at the moment at which they put the product in circulation.

e. That, in the case of the manufacturer or importer of one it divides member of a finished product, the defect is imputable to the conception of the product to which it has been gotten up or to the instructions given by the manufacturer of that product.

f. That at the moment at which the product was put in circulation, the state of the scientific and technical knowledge did not allow to appreciate the existence of the defect.