Product liability in The Netherlands
Under the EU Product Liability Directive, which is implemented in the laws of the member states (including The Netherlands):
- a producer is strictly liable for any damage caused by a defect in its product
- “damage” means any damage caused by death or personal injury or damage to any property intended for private use and valuated at € 573,31
- a “producer” includes:a manufacturer of a finished product or component(s) of a product
- a producer of raw materials
- an “own brander” (anyone who by putting his name, trademark or other distinguishing sign or feature on the product holds himself put as its producer)
- an importer into the EU; and, in case a producer can not be identified: the supplier
- a product is defective when it “does not provide the safety which a person is entitled to expect”; relevant considerations include the way the product is presented, reasonable expectations of its use, and the time when it was put into circulation.
The onus of proof is on the claimant to prove the damage, the defect and the causal relationship between the defect and the damage.
A producer has some defences, including the state of the art defences (at least in some member states), i.e. that the state of scientific and technical knowledge at the time when the product was circulated would not have allowed the defect to be discovered.
The producer can not exonerate product liability.
Claims should be filed within 3 years after damage, the defect and the identity of the producer has become known to the claimant.
A manufacturer or supplier who is concerned that it has placed a defective product on the market will need to consider a number of factors before deciding what action to take (see the recall checklist below).
Options available to a producer
There are various options available to a producer, such as:
- undertaking a full-scale recall
- trying to remedy the problem by mending the defect or defective goods
- issuing warnings, statements and press notices to alert customers and/or public
- informing retailers, resellers and distributors of the product defect
- deciding whether or not a product recall is necessary.
The producer will need to consider all of these options, as well as the commercial consequences that stem from each of them, and choose the one that is most appropriate in view of the risks posed by the product, and all other relevant circumstances.
First of all the company will need to assess the involved risk properly.
This will involve conducting a full investigation into the facts surrounding any concerns and allegations that have been expressed about the safety of its product (perhaps by testing by external experts as well as by the companyís expert itself). The company may also need to contact its customer service department, distributors and retailers in the supply chain, and possibly consumers themselves, and obtain as much information as possible from them. With this information, the company will be in a position to decide whether the defect is sufficiently serious to launch to a full scale recall of the product.
Under the GPS Directive applicable in the EU, a company is under a duty to notify the competent national authority if it has supplied an unsafe product, and to work with the authority to agree on an appropriate response. If an agreement cannot be reached, the authority will have the power to order that the product be recalled and take such other action as it considers appropriate, including warning consumers of the risk. Therefore, it is important to have an effective risk management system in place for dealing with safety issues, so that when working with the regulators, the company is in a position to demonstrate that it is in control of the situation and has a clear strategy based on a proper risk assessment.
Product Recall Checklist
A manufacturer or supplier who is concerned that it has put a defective product on the market will need to consider a number of factors before deciding what action to take. The questions a producer may need to ask could include the following:
- how many consumers have bought the product?
- how many complaints have been received?
- who were the intended types of consumer, for example adult, child, anyone at risk?
- can the risk to consumers be quantified?
- what hazard is caused by the product?
- how serious might any (potential) injury be?
- should the products be tested by an external expert?
- how long has the product been on the market?
- how old is the batch of defective products?
- is the incident a one-off?
- is the customerís allegation true?
- can the problem be addressed without a recall?
- where are the goods now, for instance with distributors, retailers, etc.?
- do lawyers, PR companies, insurers, other suppliers and media need to be alerted?
- are warnings needed to inform consumers?
- do the relevant authorities need to be notified, and, if so, which?
- is a general sales stop or recall necessary or can the problem be solved with the individual customer(s)?
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