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Ansvarsfriheten för utvecklingsskador inom EU - En rättsekonomisk perspektivstudie

Prosell, Martin (2008)
Department of Law
Abstract
This essay deals with a certain part of the EC directive on liability for defective products called the state-of-the-art defense. The defense protects the manufacturers from liability from damages caused by a defect that could not be foreseen given the technical and scientific knowledge available at the time the product was developed. Most member states have, since the directive saw its light in the middle of the eighties, chosen to exclude manufacturers from such a liability which is optional for the member states under art 7(e). Since then the debate has been lively among consumer associations that wants to see a change in the directive into a more consumer friendly path and industry representatives that wants to keep the possibility for... (More)
This essay deals with a certain part of the EC directive on liability for defective products called the state-of-the-art defense. The defense protects the manufacturers from liability from damages caused by a defect that could not be foreseen given the technical and scientific knowledge available at the time the product was developed. Most member states have, since the directive saw its light in the middle of the eighties, chosen to exclude manufacturers from such a liability which is optional for the member states under art 7(e). Since then the debate has been lively among consumer associations that wants to see a change in the directive into a more consumer friendly path and industry representatives that wants to keep the possibility for the member states to exclude liability. In 2006 the European Commission presented a report where it didn´t find it necessary, at this stage, to submit any proposals for amendments concerning the state-of-the-art defense. The Commission comes to that conclusion on a number of economic arguments but also on the view that making the manufacturers liable for such damages would be unfair. The first part of this essay tries to investigate the scoop of the state-of-the-art defense. Here it gets clear that it can be quite difficult for a manufacturer to be successful with the defense due to the narrow wording of the directive but also due to one of European Courts decisions. The defect must have been impossible to discover taking the newest available technical and scientific knowledge into account. It has also been clear that the state-of-the art defense has most importance in certain product groups such as drugs, blood products and chemical products. The following part of the essay is an economic analysis of the state-of-the-art defense that uses the theories developed under the school of law and economics. The basics in microeconomics are first explained so that a beginner in the field can follow the rest of the essay. The analysis then starts with a simple basic model that is often used when analyzing the system of products liability but that basic model has to be modified due to the special kinds of damages that are analyzed in this essay. It is for example impossible for both the consumers and the manufacturers to be perfectly informed of the risks for these kinds of damages. The economic analysis continues with arguments both for and against keeping the state-of-the-art defense. By making the manufacturers liable for such damages it can force manufacturers to invest more in safety which can be effective and it might be more costly for the consumers to bear the risk. Although keeping the state-of-the-art defense can protect the manufacturers' incentives to innovate and if that changes it can instead lead to a cost for the society. Which set of arguments that is sounder then the other is difficult to decide but the risk for the society might be higher if the state-of-the-art defense is excluded. (Less)
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author
Prosell, Martin
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Förmögenhetsrätt, Rättsekonomi, Skadeståndsrätt
language
Swedish
id
1561354
date added to LUP
2010-03-08 15:55:28
date last changed
2010-03-08 15:55:28
@misc{1561354,
  abstract     = {This essay deals with a certain part of the EC directive on liability for defective products called the state-of-the-art defense. The defense protects the manufacturers from liability from damages caused by a defect that could not be foreseen given the technical and scientific knowledge available at the time the product was developed. Most member states have, since the directive saw its light in the middle of the eighties, chosen to exclude manufacturers from such a liability which is optional for the member states under art 7(e). Since then the debate has been lively among consumer associations that wants to see a change in the directive into a more consumer friendly path and industry representatives that wants to keep the possibility for the member states to exclude liability. In 2006 the European Commission presented a report where it didn´t find it necessary, at this stage, to submit any proposals for amendments concerning the state-of-the-art defense. The Commission comes to that conclusion on a number of economic arguments but also on the view that making the manufacturers liable for such damages would be unfair. The first part of this essay tries to investigate the scoop of the state-of-the-art defense. Here it gets clear that it can be quite difficult for a manufacturer to be successful with the defense due to the narrow wording of the directive but also due to one of European Courts decisions. The defect must have been impossible to discover taking the newest available technical and scientific knowledge into account. It has also been clear that the state-of-the art defense has most importance in certain product groups such as drugs, blood products and chemical products. The following part of the essay is an economic analysis of the state-of-the-art defense that uses the theories developed under the school of law and economics. The basics in microeconomics are first explained so that a beginner in the field can follow the rest of the essay. The analysis then starts with a simple basic model that is often used when analyzing the system of products liability but that basic model has to be modified due to the special kinds of damages that are analyzed in this essay. It is for example impossible for both the consumers and the manufacturers to be perfectly informed of the risks for these kinds of damages. The economic analysis continues with arguments both for and against keeping the state-of-the-art defense. By making the manufacturers liable for such damages it can force manufacturers to invest more in safety which can be effective and it might be more costly for the consumers to bear the risk. Although keeping the state-of-the-art defense can protect the manufacturers' incentives to innovate and if that changes it can instead lead to a cost for the society. Which set of arguments that is sounder then the other is difficult to decide but the risk for the society might be higher if the state-of-the-art defense is excluded.},
  author       = {Prosell, Martin},
  keyword      = {Förmögenhetsrätt,Rättsekonomi,Skadeståndsrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Ansvarsfriheten för utvecklingsskador inom EU - En rättsekonomisk perspektivstudie},
  year         = {2008},
}