Editing Product liability (section)

===Europe===

Although European observers followed ''Greenman'' and Section 402A "with great interest", European countries did not initially adopt such a doctrine.<ref name="ReimannPage251" /><ref name="HowellsPage_214">{{cite book |last1=Howells |first1=Geraint |last2=Owen |first2=David G. |editor1-last=Howells |editor1-first=Geraint |editor2-last=Ramsay |editor2-first=Iain |editor3-last=Wilhelmsson |editor3-first=Thomas |title=Handbook of Research on International Consumer Law |date=2018 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=202–230 |edition=2nd |chapter-url=https://books.google.com/books?id=codlDwAAQBAJ&pg=PA214 |access-date=31 May 2020 |chapter=Products liability law in America and Europe|isbn=9781785368219 }}</ref>  For example, after the landmark case of ''[[Donoghue v Stevenson]]'' [1932] (which followed ''MacPherson''), UK product liability law did not change any further for many decades, despite "trenchant academic criticism".<ref name="Stapleton_Page37">{{cite book |last1=Stapleton |first1=Jane |title=Product Liability |date=1994 |publisher=Cambridge University Press |location=Cambridge |isbn=9780406035035 |page=37 |url=https://books.google.com/books?id=ohxyzSM76n8C&pg=PA37}}</ref>  Strict liability for defective products finally came to Europe as a result of the [[thalidomide scandal]]<ref name="ReimannPage251" /><ref name="HowellsPage_214" /> and the victims' ensuing struggle during the 1960s to obtain adequate compensation, especially in the UK and West Germany.<ref name="Stapleton_Pages42-47">{{cite book |last1=Stapleton |first1=Jane |title=Product Liability |date=1994 |publisher=Cambridge University Press |location=Cambridge |isbn=9780406035035 |pages=42–47 |url=https://books.google.com/books?id=ohxyzSM76n8C&pg=PA42}}</ref>

The thalidomide scandal highlighted the need for a strict product liability claim sounding in tort because the affected infants were mere bystander victims, as distinguished from product buyers or users.<ref name="Stapleton_Pages42-47" />  After the UK formed the [[National Health Service]] (NHS) in 1948, 80% of pharmaceuticals were provided to patients through the NHS.<ref name="Stapleton_Pages42-47" />  By assuming financial responsibility for the provision of drugs, the government had thereby barred the majority of mothers (the actual product users) and their infants from bringing breach of warranty claims sounding in contract.<ref name="Stapleton_Pages42-47" />  For such victims, their only possible claim was a negligence claim sounding in tort, but it is so difficult under English law to prove the standard of care of a reasonable drug manufacturer that as of late 1993, none had ever been held liable in an English court under a negligence theory (although there had been a number of out-of-court settlements).<ref name="Stapleton_Pages42-47" />

The first international effort in Europe to harmonize product liability resulted in the [[Council of Europe]] [[Convention on Products Liability in regard to Personal Injury and Death]] (the '''Strasbourg Convention''') in 1977, which never entered into force: while it was signed by Austria, Belgium, France and Luxembourg, it was ratified by none of them.<ref>{{cite web |title=European Convention on Products Liability in regard to Personal Injury and Death |year=1977 |publisher=Council of Europe |access-date=2008-04-30 |url=http://conventions.coe.int/treaty/en/Treaties/Html/091.htm}}</ref>

On July 25, 1985, the then-[[European Economic Community]] adopted the [[Product Liability Directive]].  In language resembling what Traynor wrote in ''Escola'' and ''Greenman'', the Directive's preface states that "liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production."  The Directive gave each member state the option of imposing a liability cap of 70 million [[euro]]s per defect.  Unlike the United States, the Directive only imposed strict liability upon "producers"—that is, manufacturers of raw materials, component parts, and finished products, as well as importers—and deviated significantly from the American model by deciding not to impose strict liability on purely domestic distributors or retailers.<ref name="Reimann_2003" />  By using the 20-year-old Section 402A as their model, the Directive's drafters decided not to include a number of changes such as the subsequent differentiation between three major types of product defects used in the US.<ref name="Reimann_2003" />

As of 2003, on the one hand, product liability had expanded around the world within the past two decades to become a "global phenomenon," and therefore, "the United States is no longer the only country with tough product liability rules."<ref name="Reimann_2003" />  On the other hand, the picture looked very different when one "turn[ed] from the law on the books to the law in action."<ref name="Reimann_2003" />  In the real world, the actual protection afforded to consumers by product liability law "depends heavily on whether claims are realistically enforceable," and that depends upon whether the procedural law of the forum state is actually able to facilitate access to justice.<ref name="ReimannPage259">{{cite book |last1=Reimann |first1=Mathias |editor1-last=Bussani |editor1-first=Mauro |editor2-last=Sebok |editor2-first=Anthony J. |title=Comparative Tort Law: Global Perspectives |date=2015 |publisher=Edward Elgar Publishing |location=Cheltenham |pages=250–278 |chapter-url=https://books.google.com/books?id=Q5FHCgAAQBAJ&pg=PA259 |accessdate=1 May 2020 |chapter=Product liability|isbn=9781784718138}}</ref>

Traditionally, European courts have provided no discovery or rather minimal discovery (by American standards).<ref name="Reimann_2003" /><ref name="Sautter_Page20" /><ref name="Bergkamp_Page420">{{cite book |last1=Bergkamp |first1=Lucas |title=European Community Law for the New Economy |date=2003 |publisher=Intersentia |location=Antwerp |isbn=9789050952293 |page=420 |url=https://books.google.com/books?id=_H9sBl9eN5sC&pg=PA420 |accessdate=9 June 2020}}</ref> Where available, European discovery is rarely self-executing (that is, automatically effective by operation of law), meaning that the defendant and third parties have no obligation to disclose anything unless and until the plaintiff obtains a court order.<ref name="Reimann_2003" /><ref name="Bergkamp_Page420" />  [[Civil law (legal system)|Civil law countries]] strongly dislike and oppose the American principle of broad discovery in civil litigation.<ref name="Maxeiner_Page 151">{{cite book |last1=Maxeiner |first1=James R. |title=Failures of American Civil Justice in International Perspective |date=2011 |publisher=Cambridge University Press |location=Cambridge |isbn=9781139504898 |page=151 |url=https://books.google.com/books?id=Ef_Oa3qTqL4C&pg=PA151 |accessdate=9 June 2020}}</ref>  For example, since 1968, it has been a crime for a French company to produce commercial information in foreign legal proceedings without express authorization from a French court, and in turn, this has been raised as a defense to discovery by French defendants in American product liability cases.<ref name="Evans">{{cite news |last1=Evans |first1=Judith |title=Grenfell cladding manufacturer declines to release documents |url=https://www.ft.com/content/8a63066a-0ad8-11ea-b2d6-9bf4d1957a67 |archive-url=https://ghostarchive.org/archive/20221210/https://www.ft.com/content/8a63066a-0ad8-11ea-b2d6-9bf4d1957a67 |archive-date=2022-12-10 |url-access=subscription |url-status=live |accessdate=23 May 2020 |work=Financial Times |publisher=FT Group |date=19 November 2019}}</ref><ref>''Société Nationale Industrielle Aérospatiale v. United States District Court,'' {{ussc|482|522|1987}}.</ref>  Since the defendant usually possesses most of the extant evidence of a product defect, in most European countries it is "very difficult, if not impossible, for a victim or her lawyer to investigate a product liability case."<ref name="Reimann_2003" />

Other obstacles—especially in civil law countries—include high filing fees, no right to a jury trial, low damages for pain and suffering, the unavailability of punitive damages, and the unavailability (before the 2010s) of class actions.<ref name="Reimann_2003" /> As of 2003, there was ''no'' country outside of the United States where plaintiffs were able to recover noneconomic damages above US$300,000 for even the most catastrophic injuries.<ref name="Reimann_2003" /> As of 2015, product liability in Europe "has remained a fairly minor field which generates fewer cases, more modest awards, and rarely makes it into the headlines" (in comparison to its American cousin).<ref name="ReimannPage260" />  In July 2018, [[European Commission]] staff reported that from 2000 to 2016, a total of only 798 product liability claims had been filed in the national courts of EU member states.<ref name="2018EurComReport">{{cite web |title=Commission Staff Working Document, Evaluation of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products Accompanying the document Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the Application of the Council Directive on the approximation of the laws, regulations, and administrative provisions of the Member States concerning liability for defective products (85/374/EEC) (SWD/2018/157 final) |url=https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=SWD:2018:157:FIN |website=EUR-Lex |publisher=Publications Office of the European Union |access-date=29 October 2022 |location=Luxembourg |date=5 July 2018}}</ref>  As of 2020, the much smaller number of cases in the UK meant that "English case law ha[d] barely begun to consider" many of the product liability issues already explored thoroughly by American courts, which therefore required an English legal treatise to cite to a "significant proportion" of American cases in order to illustrate where English product liability law could go in the future.<ref name="Fairgrieve_Page15">{{cite book |last1=Fairgrieve |first1=Duncan |last2=Goldberg |first2=Richard S. |title=Product Liability |date=2020 |publisher=Oxford University Press |location=Oxford |isbn=9780191669941 |page=15 |edition=3rd |url=https://books.google.com/books?id=gbvrDwAAQBAJ&pg=PA15 |accessdate=10 October 2020}}</ref>

During the late 2010s, the comparative outcomes for consumers affected by the [[Volkswagen emissions scandal]] vividly highlighted the deficiencies of European civil procedure as applied to a defendant who had already publicly admitted to violations of [[United States environmental law|U.S. environmental laws]].<ref name="Hensler">{{cite book |last1=Hensler |first1=Deborah R. |last2=Kalajdzic |first2=Jasminka |last3=Cashman |first3=Peter |last4=Gómez |first4=Manuel A. |last5=Halfmeier |first5=Axel |last6=Tzankova |first6=Ianika |author1-link=Deborah Hensler |title=The Globalization of Mass Civil Litigation: Lessons from the Volkswagen "Clean Diesel" Case |date=2021 |publisher=[[RAND Corporation]] |location=Santa Monica |pages=31–33, 46–47, 62–63 |url=https://www.rand.org/content/dam/rand/pubs/research_reports/RRA900/RRA917-1/RAND_RRA917-1.pdf |access-date=31 December 2021}}</ref>  In the United States, Volkswagen quickly settled the consolidated consumer class action and agreed to pay US$11.2 billion directly to consumers affected by its allegedly defective diesel vehicles.<ref name="Hensler" /> In contrast, consumers in Europe and elsewhere around the world had to fight much longer and harder for less compensation.<ref name="Hensler" />  Many of them were unimpressed with Volkswagen's vigorous advocacy of legal defenses based on technical differences between different nations' environmental laws; from their perspective, they had paid for a "clean diesel" car, they did not get a "clean diesel" car, and did not understand why they deserved far less compensation than American consumers for what they perceived to be the same defect.<ref name="Hensler" />  This embarrassed Germany into dropping its longstanding opposition to European [[collective redress]] proposals, and the country also made reforms to its domestic civil procedure.<ref name="Hensler" />  As a result, on 25 November 2020, the European Parliament and Council adopted the Directive on Representative Actions.<ref name="Hensler" />  Paragraph 1 of Article 1 of the Directive states that it is intended "to improve consumers' access to justice."<ref>{{cite web |title=Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC|url=https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2020.409.01.0001.01.ENG |website=[[EUR-Lex]] |publisher=[[Publications Office of the European Union]] |date=25 November 2020}}</ref>

In 2024,  [[Directive (EU) 2024/2853]] on the liability for defective products repealed Council Directive 85/374/EEC and provided an expanded scope on product liability, now including components of products as well as [[software]].