legal context – its action plan 5€¦ · – legal basis • eu: council dir. 93/13/eec of...

1Copyright Lexing 2012

LEGAL CONTEXT – ITS Action Plan 5.2

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2Copyright Lexing 2012 2

Agenda

1.General context

2.Different types of liability


1. General context

1. Technical context

2. An EU initiative

3. Insight of the legal

framework


1.1 Technical context

• ITS…– Are: “advanced applications which without embodying

intelligence as such aim to provide innovative services

relating to different modes of transport and traffic

management and enable various users to be better

informed and make safer, more coordinated and smarter

use of transport networks” (Dir. 2010/40/EU of 7-7-2010

on the framework for the deployment of Intelligent

Transport Systems in the field of road transport and for

interfaces with other modes of transport)

• … involve various technologies, parties and liability issues

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1.2 An EU initiative

• Communication from the Commission

Action Plan for the deployment of ITS in Europe (COM(2008)886 final) of 16-12-2008:

– Area 5.2

• Dir. 2010/40/EU of 7-7-2010:

– First regulatory framework instrument

– Article 11: liability issues related to the deployment of ITS


1.3 Insight of the legal framework

• Applicability of general EU legislation, notably:

- Dir. 2001/95/EEC of 3-12-2001 on general product safety

• General safety requirements for products placed on the market

– Compliance with safety provisions

– Consumer information and

avoidance of threats

• RAPEX



• Applicability of sector-specific legislation, such as:

– Type-approval of vehicles

• Directive 2007/46/EC of 5-9-2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (lastly modified by Commission Regulation EU 65/2012 of 24-1-2012)

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– E-tolling• Dir. 2004/52/EC of 29-

4-2004 on the interoperability of electronic road tolling systems in the Community

• Decis. 2009/750/EC of 6-10-2009 on the definition of European Electronic Toll Service and its technical elements

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• And also of international regulations…

– Vienna Convention on road traffic of 8-11-1968

• Art. 8 and art. 13.1

• Contradiction between the development of ITS technologies and their introduction within the driver’s environment

• How is it dealt abroad?

– Nevada: Assembly Bill 511 – Committee on Transportation, 6-2011

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1. Contractual liability

2. Tort liability

3. Product liability

2. Different types of liability


2.1 Contractual liability

• Several liability regimes at stake

• A broad range of actors

• Still some work in progress with respect to the

comparison of the different national legislations



• When ?

– A contractual relationship: sale and service contracts in the field of ITS

– Non-performance of a contractual obligation

– Exclusion of tort liability rules

– Precedence of Product liability rules

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• Legal Framework: EU level

– Several consultations and reports

– Proposal for Regulation of the European Parliament and of the Council on a Common European Sales law in 2011

– Dir. 2011/83/UE of 25-11-2011 on consumer rights

– “Horizontal harmonization”: Council Dir. 93/13/EEC of 5-4-1993 on unfair terms in consumer contracts and Dir.1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees

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• Legal framework at national levels: examples

• France

– French civil code art. 1147

• damage

• non-performance of an obligation

• causal link

– And also: French civil code art. 1184 (specific performance)



– Sales contracts

• Evidence : nature of the obligation

• Examples of common of basis for responsibility in the

French Civil code :

– Duty to deliver the good (art.1604)

– Warranty of hidden defects (art.1641)

• Some specific basis in the French Consumer code:

– Obligation of security (art.L221-1)

– Lack of conformity and hidden defects (art.L211-4)

– Services contracts

• Non-performance of a service provider’s obligations

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• Germany

– Specific provisions in

the German Civil Code

• UK

– Sale of Goods Act 1979

– Consumer Protection

Act 1987 largely

superseded by the

General Product Safety

Regulations 1994

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• Clauses excluding or limiting liability

– Legal basis

• EU: Council Dir. 93/13/EEC of 5-4-1993 on unfair terms in consumer contracts (lastly modified by Dir. 2011/83/EU of 25-10-2011 on consumer rights)

• France: French Consumer Code art. L132-1 et seq

• UK: Unfair Contract terms Act

– General common principles

• Validity of clauses limiting or excluding liability

• Restrictions: notably for B-to-C contracts

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• Information from stakeholder survey

• Sale contracts

– Manufacturers of devices/systems: exclusion of consequential damages

– Vehicle manufacturers: warning disclaimers in the description of ADAS

• Service contracts

– Service providers: service description limited to a list of operational actions

– Limitation of liability risks in terms of % of contract volume or fixed values in Euro

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2.2 Tort liability

• When ?

– No contractual liability involved

– Various lliability schemes

• Architecture chosen for ITS applications and services

• National tort liability legislations

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2.2 Tort liability

• General conditions

– Damage

• Driver of a vehicle or third parties: physical damage or damage to property following to the use of ITS applications or services

• Users of ITS applications and services if no contractual liability


2.2 Tort liability

– Event causing the damage

• Failure of the roadside unit equipment

• Failure in communication between the roadside unit equipment and the road users

• Failure in the telecommunication systems etc.

– Causal link

• Technical and organisational complexity of driver assistance systems based on communication

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2.2 Tort liability

• Legal framework at national levels: example of France

– Several specific tort liability regimes

• French Civil Code art. 1382: fault

– Standard of conduct infringed by a positive act or

by negligence

– exemption causes

• French Civil Code art. 1384: damage caused by things and vicarious liability

– Strict liability

– Exemption causes

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2.2 Tort liability

– Exclusion or limitation of liability

• Clauses are not valid

• Validity of external causes

– Force majeure event (GNSS signals?)

– Third parties' acts

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2.3 Product liability

• Legal Framework: EU level

– Dir. 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products

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• Legal regime at national levels : some examples

– France: Law 98-389 of 19-05-1998 on liability for defective products : French civil code art. 1386-1 et seq.

– Germany : German Product Liability Act

– UK : Consumer Protection Act 1987



• Main characteristics of the EU legal regime

– Main interests

• Strict liability

• Joint and several liability: safety defect

– Debtor of the obligation to provide compensation

• Producers

– article 3 Directive 85/374/EEC

• Importers

• Suppliers



– Term

• Limitation period: 3 years from the day on which the plaintiff became aware, or should reasonably have become aware of the damage, the defect and the identity of the producer (Dir.85/374/EEC art. 10.1)

• Right to claim damages: 10 years after the product has been put on the market(Dir.85/374/EEC art. 11)

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• Conditions

– Damage (Dir. 85/374/EEC art. 9)

• Damage caused by death or by personal injuries

• Damage to or destruction of any item of property other than the defective product itself

– Causal link : the defect must have caused the damage (Dir. 85/374/EEC art. 4)

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– Event causing the damage : defective product

• The product

– “ All movables” even those incorporated into

another movable or into an immovable (Directive

85/374/EEC art. 2)

– Question: Intangible property?

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• The defect

– Dir. 85/374/EEC art. 6: “(…) It does not offer the

safety that a person can legitimately be expected

which a person is entitled to expect, taking all

circumstances into account, including:

- the presentation of the product;

- the use to which it could reasonably be expected

that the product would be put;

- the time when the product was put into

circulation”.

– Internal defect, manufacturing defect or defect by

design

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– Questions:

- How to accurately assess the safety a consumer may be entitled to expect from a product?

- Complex and innovative products?

- ITS applications using GNSS signals (GPS, Galileo)?

– Examples:

- The product did not meet the manufacturers’ product specifications

- Inadequate instructions or misleading advertisements regarding the use of ADAS equipment

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• Exemption of liability

– Exclusion of contractual clauses limiting or excluding liability (Dir. 85/374/EEC art.12)

– Contribution of the victim (Dir. 85/374/EEC art.8)

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– Exemption from liability cases

• He did not put the product into circulation

– ECJ O’Byrne case

– Left the manufacturing process and entered the

commercialization process

• The defect did not exist at the time when the product was put into circulation by him or this defect came into being afterwards

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• The product was neither manufactured by him for sale or any form of distribution for economic

purpose nor manufactured or distributed by him in the course of his business

• The defect is due to compliance with mandatory regulations

– Concept of public authorities?

– France: legislative or regulatory rules (French civil

code art. 1386-11)

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• The state of scientific and technical knowledge at the time when he put the product into circulation

was not such as to enable the existence of the defect to be discovered

– Most advanced state of scientific and technical

knowledge publicly available at the time the product

was put into circulation

– Some countries in the EU have adopted this

exception in national law and some other countries

have limited the scope of this exception

– France : not used when the damage is caused by

an element of the human body or by products of the

human body (French civil code art. 1386-12)35



• The defect is attributable to the design of the product in which the component has been fitted or

to the instructions given by the manufacturer of the product

– Liability of the producer of the end product

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Questions - Answers


Informations

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