Advocate General at the ECJ: no product liability for erroneous information

Category: product liability Industry: consumer goods Author: Year:
Philipp Reusch

According to arguments made by Advocate General Hogan before the European Court of Justice (ECJ), the Product Liability Directive, Directive 85/374/EEC (PLD) (PDF), does not apply to damages arising from erroneous information in a newspaper.

The case involved a weekly column in an Austrian newspaper, titled "Benedict the herbalist priest," in which the author recommends the application of grated horseradish to alleviate rheumatic pain. Instead of a treatment time of 2-5 minutes, which would have been correct, the newspaper placed it at 2–5 hours. A reader followed these incorrect instructions and suffered a toxic contact reaction caused by the strong mustard oils. The Austrian Supreme Court asked the ECJ (Case No.: C-65/20) (PDF) to clarify whether no-fault liability in accordance with the PDL would come into consideration in such a case.

In his Opinion, the Advocate General argues that the answer to this question is no. While the newspaper is, generally speaking, a product within the meaning of Article 2 of the PLD, the Advocate General points out that liability in accordance with Article 1 of the PLD requires a defect arising from the embodiment of the product. He argues that this requirement is not met in this case since the defect arises from the information contained in the newspaper, and can therefore be qualified as a defective service. As a result, this case is outside the scope of the PLD.

The Advocate General's Opinion injects new life into the debate concerning the embodied product requirement in product liability law, which could affect liability for software as well. Recently, more and more authors have taken the position that application of the PLD cannot be denied merely because the product has no body. The wording of Article 2 of the PLD is actually clear: under that statute, "product" is defined as a movable object, i.e. as a physical object. Accordingly, liability for unembodied products is not intended based on the wording of the statute. Nevertheless, many voices in the literature have argued in favor of liability for unembodied products, pointing out that the PDL was enacted in 1985 and understandably did not consider the status of unembodied products, such as e.g. software, to the degree which would be necessary today. But the Advocate General argues that unembodied products cannot be included within the scope of the Directive by way of progressive development of the law, so that the embodied product requirement remains in effect. He concludes that no other assessment is possible without changing the law.

While the ECJ has yet to issue a judgment on this question, the court usually agrees with the Advocate General's opinions, which are issued in an independent capacity in preparation for the court's ruling, and which provide a template for the final decision. Nevertheless, we cannot rule out the possibility that the court's ruling will deviate from the Advocate General's Opinion. We will report any future developments.

[May 2021]