Product safety and liabilitySafety and environmental
What are the most relevant automotive-related product compliance safety and environmental regulations, and how are they enforced? Are there specific rules for product recalls?
The most relevant regulations regarding safety and environments issues at the EU level are Directive 2007/46, Regulation (EC) 715/2007, and Regulation (EC) 661/2009. Polish law follows the EU legislation and sets out the procedural rules required for the enforcement of these provisions.
Additionally, automotive-related products are covered by the general system applicable to product safety set out in the Product Safety Directive 2001/95/EC and implemented into Polish law by the Act of 12 December 2003 on the General Safety of Products. The provisions of this Act are only applicable to those products that are intended to be used by consumers.
According to the Act of Road Traffic, which implements Directive 2007/46/EC:
- the Director of Transportation Technical Supervision can refuse to grant EU-type approval if it finds that a vehicle, component or separate technical unit, although in compliance with the required prescriptions, presents a serious risk to road safety or seriously harms the environment or public health (article 70p(3)); and
- the Director of Transportation Technical Supervision can revoke the EU-type approval granted in Poland (upon a prior demand to the manufacturer to remedy a non-compliance) if an inspection shows the non-conformity of the production of the vehicle, component or separate technical unit, or the installation of an liquefied petroleum gas system with the required standards (article 70r). The Director of Transportation Technical Supervision can initiate an inspection if it obtains information on any non-conformity (article 70w).
As far as the obligations of an OEM to which EU type approval has been granted are concerned, the OEM must immediately inform the Director of Transportation Technical Supervision if it discovers that a vehicle could cause road safety danger or damage to the environment (article 70u). The OEM must additionally undertake actions required to remove this danger or damage. In order to remove the danger or damage, the OEM must prepare a schedule of planned corrective actions, agree on a plan with the Director of Transportation Technical Supervision and inform the owner of the vehicle about the necessity to inspect the vehicle. The costs of any corrective actions are covered by the OEM.
Apart from the requirements stemming from the specific provisions applicable to car manufacturers, OEMs are covered by the general system on product safety. An OEM is obliged to immediately inform the Polish Competition Authority as soon as it has obtained information that a car is unsafe. Failure to fulfil this obligation can result in a financial penalty imposed on the OEM of up to 100,000 zlotys.
The Polish Competition Authority will initiate proceedings and decide on a case-by-case basis as to what steps should be taken towards a specific product. Before issuing a final decision, the Polish Competition Authority might render a temporary decision in which it prohibits the further supply of the product (for a maximum of 90 days), until a final decision has been reached. This decision can only be issued if the initial assessment provides grounds to a claim that the product might be unsafe.
If, in its final decision, the Polish Competition Authority claims that the product is unsafe, it can order a specific corrective action (eg, recall or an obligation to inform consumers on the possible dangers caused by the product). In general, it is advisable to cooperate with the Polish Competition Authority within the proceedings and propose specific corrective actions in order to mitigate any potential legal or financial risk for the manufacturer.
In the second quarter of 2017, the Polish Competition Authority conducted a broad inspection of the components and separate technical units available on the Polish market. The objective was to determine whether the products possessed the required approval certificates. The inspection revealed that the majority of products had the appropriate certificate, and only 3 per cent of the products were questioned by the Polish Competition Authority.Product liability and recall
Describe the significance of product liability law, and any key issues specifically relevant to the automotive industry. How relevant are class actions or other consumer litigation in product liability, product recall cases, or other contexts relating to the automotive industry?
Depending on the circumstances of a given claim, product liability claims can be pursued as contractual or pursued under the tort law system (which also includes the strict dangerous product rules).
Contractual claims encompass all of an OEM’s or supplier’s potential breaches of an agreement (in terms of product quality), as well as any customer’s warranty claims. A violation of an agreement claim is usually aimed at a payment relief, whereas a warranty allows for a wider scope of remedies: the customer might demand to have the vehicle part rectified or replaced, to have the product price reduced or to withdraw from the agreement and claim back what was already paid.
The tort law, in turn, allows for an OEM or a supplier to be held liable regardless of whether any agreement is in force. As a rule, the general tort liability requires the customer to demonstrate that the OEM’s or supplier’s actions leading to the damage were intentional or, at least, accidental, but still attributable to it. Therefore, a more favourable solution for a person (usually a consumer) harmed by a product is to seek damages under the Polish strict dangerous product rules.
Under this system, an OEM (or a supplier - should the OEM, as a producer, be unidentified for any reason) can be sued if the product does not provide the safety level expected of this product. The claimant can win the case even though the damage occurred for reasons not attributable to the OEM or supplier. Basically, the OEM or supplier can be released from liability only if the unsafe features of a product were revealed just after it was placed on the market (unless they resulted from features previously inherent in the product), or if the unsafe features could not have been foreseen at that time in light of scientific or technical knowledge.
The amount of damages for personal injuries that can be sought in accordance with these strict dangerous product rules is unlimited. In turn, compensation for damage to property can only be awarded if the destroyed or damaged property is ordinarily intended for personal use, and the total actual loss exceeds €500 (this sum cannot include damage to the vehicle part itself, or any benefits the party could have gained in connection with its use). Liability under this Polish strict dangerous product liability law cannot be contractually excluded or limited.
Polish law allows that basically all product liability claims can be pursued through class action proceedings if they are raised by at least ten people. The sought claims need to be of the same kind and be based on the same or identical facts. Group proceedings, however, are not well recognised in Poland as a common means to claim damages in the automotive industry. There have been very few such class action cases in Poland, mostly unrelated to product liability.
As regards recalls, while the automotive industry is not one that is highly affected in Poland, it does raise certain concerns. Among the 139 alerts registered in the Rapid Alert System in 2018 and referring to Poland, only 10 per cent of recalls concerned the automotive industry. Despite this, motor vehicles were the second category of products that were most commonly notified (after toys). Therefore, product recall cases might be considered as relevant in the context of the automotive sector.