LIABILITY FOR DEFECTIVE PRODUCTS AND SERVICES: THE NETHER­LANDS

 

 

Ivo Giesen and Marco B.M. Loos*                                                                            II A 3

 

 

 

I             Introduction

 

The primary aim of this contribution is to provide the reader with an overview of the current state of the law in the Netherlands with regard to products liabili­ty.[1] While doing so, this part of liability law is, at least to a certain ex­tent, contrasted with the rules governing the liability of service providers. The main reason for this approach is that there appears to be a growing tendency to cross the border between these two areas within liability law, in order to learn about possible solutions for (more or less) common problems. Whether or not this tendency is indeed present in the Nether­lands, and whether or not there is something to be learned from develop­ments in services liability, are questions that need to be answered. In section 7 below, an attempt will be made to do just that.

        In the preceding sections, we will first deal with the rules governing liability for defective products (section 2) and for services (section 3), followed by a discussion on the major sources of the law, the past and future developments and the policy issues that are at stake (section 4). The focus in section 5 is on the institutional and procedural environment surrounding these areas of liability law. The frequency of settlements and litigation and other aspects relating to ‘the law in action’, such as insurance schemes, are dealt with in section 6.

 

2            The basic rules governing liability for defective products

 

2.1        Contract or tort, strict liability or negligence?

 

In the Netherlands, products liability is usually approached from the perspective of tort law (artt. 6:162 and/or 6:185 ff. of the Dutch Civil Code, Burgerlijk Wetboek, hereafter referred to as BW). Contract law could in principle be invoked[2] (especially art. 7:17 BW), even in concert with tort law, but this is hardly ever the case.[3] The reason is that usually in this type of case, there is a personal injury; whenever such is the case, a contractual fault also constitutes a tort under general tort law.[4] Since the contractual chain usually needs to be ‘stretched out’ to be able to put in a products liability claim under contract law, it is both easier and safer to make use of tort law instead of contract law. Furthermore, art. 7:24 BW stipulates that if a good is sold by a professional to a consumer and the defect falls under the scope of artt. 6:185 ff. BW, it is not the seller but (solely) the producer that is liable, unless the seller knew or should have known the defect, guaranteed the absence of the defect, or the claim consists of material damage which cannot be claimed under the products liability regulations because the damage is less then the minimum amount of 500 Euro.[5]

        Art. 6:162 BW constitutes the basis for a claim for products liability under general tort law. This basic tort rule is one of negligence. Under the EC directive on products liability[6] (hereafter: the Directive), implemented in artt. 6:185 ff. BW, the basic rule, if also applicable,[7] is (or, at least, is thought to be) one of strict liability.[8] This has been questioned, however, on the basis of case law of the European Court of Justice (hereafter referred to as ECJ), which seems to have introduced an element of fault into the Directive.[9] In general, products liability is considered to have combined elements of both fault-based liability and strict liability.[10] Even though art. 6:162 BW generally constitutes a negligence-based liability, the same applies to products liability under the general tort law regime.[11] However, one’s position in this respect also depends on the specific definition of strict liability that one embraces.[12]

 

2.2        The notion of a defective product

 

According to art. 6:186 BW (the Directive liability), a product is defective if it does not offer the safety that a person is entitled to expect, taking into account all the circumstances of the case at hand, in particular the presentation of the product, the expected use of the product, and the time the product was put into circulati­on.

        In 1989, the Dutch Supreme Court, the Hoge Raad (hereafter referred to as HR) ruled that a product is defective under art. 6:162 BW[13] if it does not offer the safety a consumer/user is entitled to expect, given the circumstances of the case.[14] In later cases, the HR stated that the element of wrongfulness vis-ą-vis the user is present if a product is put into circulation that causes damage when it is used in a normal fashion and for the purpose for which it was intended.[15] In Dupont/Hermans,[16] an explicit reference was made to the first case, and since the standard used in the case decided in 1989 very closely resembles the Directive standard (entailing the consumer expectation test), the HR effectively united the standard under general tort law and that under the Directive,[17] whereas under older case law, a form of the risk/utility test seemed to prevail.[18]

        In legal literature, a distinction is made between the well-known categories of design defects, manufacturing defects, and inadequate warnings or instructions, but in case law on products liability, this distinction has so far been without legal consequences.[19]

 

2.3        The parties involved in products liability cases

 

In principle, there is no limitation to who may sue (in the sense that, for instance, only buyers of a product have an action under products liability). Injured bystanders are allowed and able to sue under both artt. 6:162 and 6:185 BW, given the fact that both provisions are tort provisions and that their scope, therefore, is not limited by the requirement of a contractual relationship between the aggrieved party and the ‘perpetrator’. Since claims under a contract of sale are rare,[20] the question of who may sue is not frequently asked in Dutch law.

        Products liability, in general, only rests on the person putting the product into circulation. This rule is accepted under the Directive liability but also under the general tort rule.[21] Under the regime of the Directive, the ‘producer’ is potential­ly liable for the damage the product has caused, unless he proves that he did not bring the product on the market (art. 6:185 para. 1 sub a BW). This is different under general tort law where the plaintiff will have to prove that the producer brought the product on the market.[22] What exactly falls under the definition of ‘bringing the product on the market’ has, until now, been rather vague, howe­ver.[23] Passing something on in the chain of distribution has been used as a definition in this respect.[24]

        The notion of ‘producer’ is a broad one: any party who manufactures a product, a component, or the raw materials thereof is considered to be a producer, and can be held accountable under tort law.[25] The same rule applies, as far as liability under the Directive goes, to those presenting themselves as producer by placing their name, trademark, or other distinguishing mark on the product (art. 6:187 para. 2 BW), and to the party that imported the product into the European Economic Area (i.e., into the European Union, Norway, Iceland, or Liechtenstein, cf. art. 6:187 para. 3 BW). Finally, the supplier of the product will be considered to be the producer if it cannot be determined who the producer is, unless the supplier mentions, within a reasonable time, the identity of the person from whom he had bought the product (art. 6:187 para. 4 BW).[26] Under general tort law, similar rules most likely will be applied.[27] However, the negligence standard applied to a supplier of a product who cannot be considered to be the actual producer of the product itself is less strict.[28] The retail seller of a product can be held liable under the contract of sale, but, for reasons explained above, this is rare.[29]

        Important in this respect is that according to general tort law, the employ­er/pro­ducer can also be held liable for the wrongful acts of his employees (art. 6:170 BW); the provision is applied equally if liability under the Directive is invoked. Liability under art. 6:170 BW arises under the conditions that the employee acted wrongfully (his act must constitute a tort in itself), that he was indeed a servant working under instructions of the employer (a labour contract suffices here), and that there was a causal connection between the tort of the employee and the instructions provided by the employer. In order to meet the last requirement, the instructions must have been of such a nature that they provided an opportunity to commit the tort. The last two conditions are usually met quite easily.[30]

 

2.4        The burden of proof

       

Art. 6:188 BW clearly states that, under the regime of the Directive, the plaintiff will have to prove all the elements of the claim, i.e., the defect, the damage, and the causal connection between those two. Applicability of one of the defences under art. 6:185 under 1 BW is to be proven by the defendant.[31]

        In principle, the same division of the burden of proof applies if the action is based on general tort law.[32] This certainly holds true when one considers the element of (the existence of) damage.[33] In products liability cases, however, a ‘reversal’ of the burden of proof is possible (a) with regard to the ‘defect’ (the element of wrongfulness), (b) with regard to causation, and (c) with regard to the subjective fault.

        As for the defect (a), the HR considers that if a plaintiff proves that he opened a bottle, which then exploded, in a normal fashion, that state of affairs would lead to the factual presumption that the damage must have been caused by a defect in the bottle. The producer may rebut this presumption.[34] On a more abstract level, it is possible to state the rule deductible from this case as follows: if a party proves that he used the product in a normal fashion, but an unexpected damaging event nevertheless occurred, the product is presumed to have been defective.[35]

        In the field of causation (b), a new rule on the burden of proof has gained momentum in recent years. It basically states that whenever a wrongful act creates or increases a certain risk of damage and that specific risk actually materialises, the causal link has been established, unless the wrongdoer can prove that taking preventive measures would not have prevented the damage from occurring.[36] The HR has never declared that rule to be applicable or not in the area of products liability, but its scope is broad enough to encompass this field, certainly if a duty to warn has been breached.[37] One should at least be aware of the possibility that the same rule, which is in fact applied in cases of services liability,[38] might be applied in cases of products liability.

        With regard to subjective fault (c), it should be noted that this element is still a condition for liability under general tort law,[39] but that, on the other hand, fault may be presumed if the wrongfulness has been established and needs to be disproved by the defendant, thereby effectively reversing the burden of proof.[40]

        To conclude, in the case of an exploding bottle (Leebeek/Vrumona),[41] the HR has made clear that in order to escape liability, the defendant must prove that: a) the defect was not present prior to the marketing of the product; b) the defect could not have been discovered at an earlier date; and c) the product was not used in accordance with its intended use. Finally, if the defendant argues that there was (some form of) contributory negligence on the part of the plaintiff, he needs to prove that statement as well.[42]

 

2.5        Damage recoverable in products liability cases

 

The Directive regime contains a provision on the forms or types of damage that can and cannot be claimed from a producer. According to art. 6:190 BW, the plaintiff can claim damages in case of death or personal injury,[43] and for damage to property other than the product itself, intended for use in a private setting and exceeding the amount of 500 Euro. Neither damage relating to the defective product itself or to products used in a professional setting,[44] nor pure economic loss[45] are recoverable under the Directive.

        Under general tort law, the rules on compensation for damage are laid down in artt. 6:95-110 BW. Damage that should be compensated for (whenever it has been determined that there is a right to damages) includes physical and economic loss (loss suffered and profits not gained), and other disadvantages, such as immaterial losses.[46] In principle, all losses suffered should be fully reimbur­sed,[47] irrespecti­ve of the type of injury that occurred. There are thus no specific rules limiting compensation according to the type of injury in products liability cases. This means that not only physical harm (personal injury) and damage to property (either to the defective product or to other goods) is recoverable under Dutch law, but also pure economic loss.[48]

        All kinds of damages that have been recognised under Dutch law are thus also available in products liability cases, at least if the claim is based on general tort law. This excludes punitive damages since Dutch law does not recognise this form of damages.[49] Damages for non-pecuniary losses (pain and suffering) are, with certain restrictions, recoverable (art. 6:106 BW).[50] This is also relevant for the Directive liability, since this liability regime left the question as to the recoverabi­lity of damages for pain and suffering to the national systems, and still does.[51] Under Dutch law, such losses therefore are in principle recoverable.

        With regard to the amount of damages that may be claimed, no such thing as a cap or limitation exists as yet in the Netherlands.[52] The possibility provided by the Directive (in art. 16) of instituting such a cap or limit for products liability cases has not been followed. Art. 6:110 BW does recognise the possibility of installing by Royal Decree a limit on the amount of damages that can be recovered, but that possibility has not been used so far. One should realise, however, that the court does have the discretionary power, to limit an award in a specific case on the basis of equity and reasonableness (see art. 6:109 BW) if it feels that granting the full amount of damages that would normally be recoverable, would lead to unacceptable consequences, given the nature of the liability, the legal relationship between the parties, and their mutual financial capacities. The court can only lower the award to the level at which insurance is or should have been available.[53] The HR has warned lower courts to be very cautious when using this power,[54] so it has not (yet) gained much popularity.

        ECJ case law also superimposes a duty on courts to act cautiously when limiting or deducting damages. In the Veedfald-case,[55] the ECJ made clear that, although the precise interpretation and meaning of the term ‘damages’ has been left to the national courts and legislators, the Directive does entail the duty to secure a reasonable and full reimbursement of the damage (both personal injury and property damage) caused by a defective product, since the national laws may not interfere with the useful effect of the Directive. This means that a member State may not limit the categories of recoverable (material) damages.

 

2.6        Possible defences

 

Most of the major defences with regard to the Directive liability are listed in art. 6:185 para 1 sub a to f BW, and include a) the producer did not put the product into circulation;[56] b) the defect did not exist at the time the product was put into circulation; c) the product was neither produced nor spread for economic purposes, nor was it produced or spread within the producer’s professional activity; d) the defect is due to compliance with mandatory governmental regulations; e) the defect could not have been discovered at the time the product was put on the market, given the state of science and technical knowledge at that time. A last defence, (f), applicable to manufacturers of raw materials and components only, is that the defect was due to the design of the product of which that part forms a component, or that the defect is due to the instructions given by the producer of the end-product. The development risk defence is laid down in sub e) mentioned above. The Netherlands did not opt, as was offered by the Directive, to exclude this defence. Another important defence is probably that the defect occurred after the product was put on the market (sub b), which defence may especially be of interest to those ‘producers’ that only manufactured a component or the raw materials of the defective product.[57]

        Contributory (or: comparative) negligence can also be a defence, at least partially.[58] However, since under general tort law a producer is required to count on a certain degree of carelessness on the part of the user of a product,[59] this defence is usually not very successful. This would then lead the claimant to use general tort law, which ‘ in this perspective ‘ would be stricter. Mention should also be made of the limitation and extinction periods of 3 and 10 years (art. 6:191 BW). Force majeure, an Act of God, is usually not seen as a defence under the Directive.[60]

        All these rather usual defences are, in principle, also available under art. 6:162 BW, although the limitation period is (much) longer (5 or even 20 years, cf. art. 3:310 BW). The main role is played, under both general tort law as the Directive, by the development risk defence, sometimes also known as the state-of-the-art-defence (although that refers to the standard on deciding whether there was a defect).[61] According to the ECJ, the standard of that defence is an objective one (subjective knowledge of a particular producer is not sufficient), and it is one that refers to the most advanced level of knowledge available at the time the product came into circulation.[62]

 

3            The basic rules governing liability for services

 

3.1        Strict liability or negligence, contract or tort?

 

The distinction between ‘strict liability’ and negligence based liability is not a very fortunate one to be used in comparative law, since the terminology is not always used in the same manner in different legal systems.[63] From a Dutch perspective, liability for services would be considered a negligence-based liability. However, it should be noted that where the contractual position between the provider of a service and the client is concerned, the client only has to prove a breach of the standard of care. According to art. 6:75 BW, if the service provider’s non-performance[64] has been established, it is up to the provider to prove that the non-performance can not be attributed to him. The provider will be held liable not only when he was at fault, but also when the non-performance can be attributed to him by ‘common opinion’. If the claim is of a tortuous nature, the client will need to establish that the breach of the standard of care can be attributed to the provider,[65] but it should be noted again that attribution of the tortuous act to the provider on the basis of ‘common opinion’ is possible under art. 6:162 para. 3 BW. Therefore, neither in a contractual nor in a tortuous setting is ‘fault’ absolutely necessary when considering whether the provider is liable. Having said that, it should be noted that, in the ordinary course of events, the establishment of a breach of the standard of care does also imply (at least objectively) faulty behaviour on the part of the provider of the service.[66]

        The general rule on the standard of care is embodied in art. 7:402 BW. It states that the provider of the service, in the performance of his activities, must comply with the ‘care of a good provider’, whereas art. 6:28 BW provides that the quality of the service has to be of ‘average good quality’.[67] For professional providers of services, a slightly different expression is used in practice. According to this expression, it must be determined whether or not a reasonably skilled and reasonably acting professional would have acted differently in the given circumstances.[68] If the professional is to be seen as a specialist, an even higher degree of competence may be expected: the criterion then is whether a reasonably skilled and reasonably acting specialist would have acted differently.[69]

        Dutch law does not have a system of ‘non-cumul’.[70] Therefore, a claim against the provider of a service may be based on either tort law or, if a contractual relation exists between the provider of a service and the aggrieved party, on contract law. Contractual limitations of liability are normally deemed to apply equally to tort-based claims,[71] whereas statutory provisions aiming to protect a certain type of client (for instance, consumers) or to protect all clients apply regardless of the basis of the claim. The criterion to establish whether the provider has breached his standard of care is the same:[72] did the provider of the service act in the same manner as would a reasonably competent and reasonably acting provider of such a service?[73] Any damage that may be seen as the materialisation of a risk that arose as a consequence of the breach of the standard of care is presumed to have been caused by that breach, so that the burden of proof shifts towards the provider of the service. This is true when liability is based on contract, as well as when it is based on tort.[74]

        Yet, in practice, whenever a contractual link exists, the claim will be primarily based on contract law. The contractual approach is favoured in practice because of the simple fact that the burden of proof for the client is slightly better in a contractual setting, since he need not establish that the breach of the standard of care can be attributed to the provider of the service.[75] Therefore, in practice, tort-based claims only appear when a contractual link between the injured party and the provider is missing or uncertain, or as a subsidiary cause of action. In other words, a tort-based claim usually occurs if the person sustaining damage as a consequence of the breach of the standard of care is not the contractual counterpart of the provider of the service, but a third party. Liability of the provider towards such third parties depends on whether the norm that was violated by the provider was (also) intended to defend a third party’s interests. Relevant to this are the nature of the interests involved, and the fact that the provider knew or should have realised that a third party’s interests were at stake. Such will often be the case when the provider is entrusted with the execution of a service of public interest and/or when the third party may rely on the provider taking his interests into account when executing the service.[76]

 

3.2        Special rules for particular kinds of services

 

General rules on the contract for services (overeenkomst van opdracht) can be found in Book 7 (Specific contracts), Title 7 (Services), Section 1 (Services in general, artt. 7:400-7:413 BW). The rules on the overeenkomst van opdracht are of a rather rudimentary nature, and only apply if the contract is neither a contract for work (such as construction contracts or contracts to repair or maintain goods), nor a contract for the storage, transportation and expedition of people and/or goods or for the publication of books and articles, art. 7:400 para. 1 BW provides. Furthermore, art. 7:400 para. 2 BW provides that, with the exception of a few rules on consumer protection, the rules in Section 1 only apply when their non-applicability does not follow from a statutory provision, the content or nature of the contract for services, a juridical act (e.g., another contract), or custom. The general rules on the overeenkomst van opdracht are consequently regarded as very soft default rules.[77]

        Title 7 (Services) of Book 7 BW also contains more concrete rules for some specific services. The rules on the contract of mandate (lastgevingsovereenkomst) (Section 2, artt. 7:414-424 BW) apply whenever the provider undertakes to conclude one or more juridical acts (e.g., a contract). Section 3 (artt. 7:425-427 BW) on the bemiddelingsovereenkomst (contract for mediating services) applies when the provider undertakes to assist the client in the conclusion of one or more contracts with third parties. Section 4 (agentuurovereenkomst, artt. 7:428-445 BW) constitutes the Dutch implementation of the EC-directive on commercial agency.[78] Similarly, title 7A (reisovereenkomst, artt. 7:500-513) constitutes the implementation of the EC-directive on package travel,[79] whereas the EC-directive on distance selling of goods and services[80] has been regulated in Title 1, Section 9A (artt. 7:46a-46j BW). At present, a bill to implement the e-commerce-directive[81] - which includes rules on liability for the services of Internet access providers, service providers, and intermediates - is being prepared. The contract for work is still regulated in Book 7A (artt. 7A:1639-1651 BW), which means that the old BW of 1838 is still in force for these contracts. A bill to modernise the law on this type of services[82] was sent to Parliament in 1993,[83] but has not yet come into force. Finally, in Book 8 of the Civil Code, transportation law has been codified, mainly based on international treaties such as CMR.[84]

        The most interesting regulation is that of the contract for medical services (behandelingsovereenkomst), regulated in Title 7, Section 5 (artt. 7:446-468). Medical services include, among other things, the services of physicians, hospitals, and those of dentists.[85] The contract for medical services is conceived as a species of the general contract for services, which implies that the general rules of Title 7, Section 1, apply unless they are being derogated from in Section 5.[86] The contract for medical services is defined as a contract between a professional provider of medical services and a client regarding the provision of medical services to ‘the person of the client or that of somebody else’.[87] The person to whom the services are to be provided - who, therefore, need not be the client - is referred to as the patient. Section 5 attributes rights to the patient and, to some extent, also to the client; the obligation to remunerate the services rests solely with the client.[88]

        With regard to the specific details of this regulation, some articles are worth mentioning. Firstly, art. 7:448 BW requires the provider of a medical service to inform - if requested, in writing - the patient of the research to be undertaken, the treatment that is proposed, and the developments regarding the diagnosis, the treatment, and the medical condition of the patient. Furthermore, the provider needs the patient’s consent for a treatment (art. 7:450 BW). This provision is intended to lead to informed consent for any treatment.[89] Art. 7:451 BW requires the provider of the service to keep records; according to art. 7:456 BW, the patient is entitled to review these records, unless a third party’s privacy is at stake. A therapeutic exception to the right to review the records does not exist.[90] Art. 7:460 BW states that a provider of medical services may only terminate the contract for important reasons. Rather spectacular is the so-called ‘central liability’ of the hospital on whose premises the medical services are being performed. Art. 7:462 BW provides that the hospital - or any institution which is equal to a hospital under paragraph 2 - that is not the contractual counterpart of the patient, is, nevertheless, liable for breach of contract as if it were a party to that contract. In practice, this means that the patient may always sue the hospital, and need not be bothered with the question whether the person that actually performed the service is employed by the hospital (in which case the hospital is the contractual counterpart) or that that person operated on the basis of an independent contract with the hospital (in which case the contract was concluded with that person himself). Art. 7:463 BW provides that neither the provider of the service, nor the hospital that is liable under art. 7:462 BW may limit or exclude liability. Finally, art. 7:468 BW states that the parties may not derogate to the detriment of the patient from the rules on the contract for medical services, nor from some of the provisions of Section 1.

 

3.3        Liability for services seems to be pursuing an independent course˙

 

At the time of the codifications of the 19^th and 20^th century, services were fundamentally less important than they are at present. It was felt that there was no need for specific regulation in this area. Long term contracts, which form an important subcategory among service contracts, have only started to emerge in the course of the 20th century, especially since the end of World War II. The national codifications, therefore, contain hardly any provisions regarding such contracts. Consequentially, each time a new service contract was developed, rules were ‘invented’ on an ad hoc basis, while the legislator, courts and legal literature were usually blind to similar developments in other services. As a consequence, neither at the national nor at the European level does a common and coherent framework for services exist.[91]

        Nevertheless, services, and subsequently the law(s) of services, have become ever more important. Nowadays, at least in Dutch law, liability for services seems to be of greater importance than products liability,[92] and is at the centre of legal practice and doctrine. The number of cases in which professional providers of traditional services are being held liable for failure to perform the service (correctly) or for failure to inform, warn, or advice the client or patient has significantly risen over the years.[93] Breach of a duty to inform appears to have become an almost independent source of liability for providers of services. Breach of the standard of care is usually hard to prove for a client or patient, but the courts tend to distribute the burden of proof differently when duties to inform are supposedly breached. Since the professional is charged with a duty to substantiate his claim (by supplying information on all the factual aspects of the claim) that he has given the information to which the client or patient was entitled, it has become easier for the plaintiff to prove his claim.[94]

        It should be noted, however, that the notion of ‘services’ is not a fixed one. Art. 7:400 BW defines the overeenkomst van opdracht (contract for services) as any contract in which a party undertakes to execute work outside of a labour contract, and not constituting the creation of a good of a physical nature, nor the storage, transport, or expedition of people and/or goods or the publication of books and articles.[95] Yet, others are of the opinion that ‘services’ should be perceived as an overarching term that covers both intellectual services and services that would traditionally be considered contracts for work.[96] This broader, more modern notion of services would then, for instance, include construction (building) law.[97]

 

4            Sources of the law, developments in the law and policy issues

 

4.1        The major sources of law

 

Products liability is based on the articles laid down in the Dutch Civil Code, especially on art. 6:162 BW, but since that is a very general rule, intended to cover the whole of tort law, case law is without a doubt at least as important as, if not more important than the statutory rule. All particularities of products liability are created and used in case law. The creation of a European products liability law has not really altered this, although those rules (artt. 6:185-193 BW) have given the courts something on which to base their decisions, sometimes even if the European regime is not directly applicable.

        With the implementation of Book 7, Title 7, Section 1 (Services in general), the basic rule for services liability may also be found in the Dutch Civil Code (in art. 7:401 BW). However, as was the case before the introduction of this Section, the core of services liability is to be found in case law. A minor exception is to be made for the commercial agency contracts (Section 4, artt. 7:428-445 BW, which form the Dutch implementation of the EC-directive on commercial agency)[98] and travel contracts (title 7A, artt. 7:500-513 BW, which form the implementation of the EC-directive on package travel).[99]

        More substantively regulated is the contract for medical services, which has been regulated in Book 7, Title 7, Section 5 (artt. 7:446-468 BW).[100] This does, however, not mean that case law has become any less important in this area than it is in other areas.

        Case law has made these statutory rules on liability for products and services ‘fit for purpose’ in the sense that these rules have been worked out into the detailed level needed in practise by courts, most notably the HR. Academic authority does not seem to have any direct impact on the development of these more detailed rules. Doctrinal works are hardly ever cited by the HR or by the lower courts. However, they are likely to have an indirect impact, since doctrinal views are discussed rather thoroughly in the conclusions of the Advocate-General, who delivers an advice in a specific case to be dealt with by the HR. The conclusions of the Advocate-General often have a persuasive influence on both the HR’s decision and on the interpretation thereof in legal practice and science, especially if the HR follows the Advocate-General’s view.

 

4.2        Developments and trends in the (recent) past

 

General tort law on products liability has not yet gone (and probably will not go) so far as to introduce a strict liability instead of a negligence liability outside the area of application of the European Directive, but liability has tended to become more strict than under the normal negligence standard as used in other areas of tort law in the last few decades. In the area of general tort law, there are no specific statutory rules for particular groups of plaintiffs, such as, for example, rules aimed at protecting consumers. However, if one of the parties to the action is a consumer, this could influence the strictness of the negligence standard as applied by the court in the specific circumstances. In any case, it seems that in products liability, more is expected of a producer, even though the same negligence standard is used.

        An example of this trend can be found in the case of Koolhaas/Rockwool. The HR decided that when the producer of a certain fabric changes the structure of the fabric, he must not only inform the buyers of that fabric, who use the fabric to make certain goods, but also the buyers of those goods.[101] Another example of the tendency towards a stricter standard regards the proving of a claim. In that respect, the plaintiff receives help from the courts. How far this helping hand reaches (whether it constitutes a complete reversal of the burden of proof - and if so, with regard to what elements of the claim - or only constitutes a limited rule on the use of presumptions) has not yet been made totally clear by the HR,[102] and the literature is divided on the subject.[103] However, what is clear is that at least some of the relevant facts need to be proved by the defendant, and that fact in itself already makes liability stricter.[104] An example in this respect concerns the question as to the time the defect occurred. According to the Directive, the producer is required to prove that the product was not yet defective at the time it was put on the market. Under general tort law, the client used to have to prove that the defect existed before the product was put on the market. However, nowadays, even under general tort law, the producer is required to prove that the product was not defective when it was put on the market.[105]

        These developments should be contrasted with the path taken by liability based on the Directive. This form of liability seems to have moved towards a (more) fault orientated liability, leaving some of its strict liability features behind.