According to Advocate General Hogan at the European Court of Justice (ECJ), the Product Liability Directive 85/374/EEC (ProdHaft-RL) (PDF) does not apply to damage caused by incorrect information in a newspaper.
The background to this is the weekly column ‘Herbal Priest Benedikt’ in an Austrian newspaper. In it, the herbal priest recommended applying grated horseradish to relieve rheumatic pain. Instead of an application time of 2–5 minutes, as would have been correct, the newspaper stated 2–5 hours. A reader followed these incorrect instructions and suffered a toxic contact reaction caused by the pungent mustard oils. The Austrian Supreme Court asked the ECJ (Ref.: C‑65/20) to clarify whether strict liability under the Product Liability Directive could be considered in such a case.
The Advocate General answered this question in the negative in his Opinion. According to the Opinion, the newspaper is in principle a product within the meaning of Article 2 of the Product Liability Directive. However, liability under Article 1 of the Product Liability Directive requires a defect arising from the physical characteristics of the product. These conditions are not met, as the defect arises from the information contained therein and thus constitutes a defective service. The scope of application of the Product Liability Directive does not extend to this.
The Advocate General’s Opinion has given new impetus to the discussion on the requirement for a product to be embodied in product liability law. This could also affect liability for software. Recently, more and more representatives in the literature have taken the view that the application of the Product Liability Directive cannot fail because the product is not embodied. The wording of Article 2 of the Product Liability Directive is actually unambiguous. According to this, a product is defined as a movable item and thus as a physical object. According to the wording, liability for non-tangible products is therefore not provided for. Nevertheless, many voices in the literature affirm liability, in particular because the Product Liability Directive, which dates from 1985, understandably does not take non-tangible products such as software into account to the extent required today. However, in the opinion of the Advocate General, the inclusion of intangible products cannot be achieved by way of further development of the law, which thus maintains the requirement that a product must be tangible. Rather, a change in the law would be necessary for a different legal assessment.
No ruling has yet been issued by the ECJ. However, the court regularly follows the opinion of the Advocate General, who, in his position independent of the parties, prepares the court’s decision and makes a proposal for a ruling in his opinion. Nevertheless, a decision by the court that deviates from the Advocate General’s opinion cannot be ruled out. We will report on this.
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