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?
See question 2 where we detail the most relevant regulations regarding product safety and environmental issues, which are: European Directive 2007/46, Regulation (EC) 715/2007, Regulation (EU) 2017/1151 and Regulation (EC) 661/2009.
Member states ‘shall take all measures necessary to ensure that they are implemented’, including setting penalties under national laws to sanction non-compliance. Such penalties ‘must be effective, proportionate and dissuasive’.
Directive 2007/46/EC has been implemented in the French Highway Code which provides that:
- if the French Ministry of Transport considers that even if compliant with the type approval Regulation, a vehicle presents a serious risk to road safety or seriously harms the environment or public health, the EC type approval may be refused (article R. 321-9 of the French Highway Code);
- if, after the French Ministry of Transport granted EC type approval, new tests show non-compliant results, the Ministry may take all necessary actions, including withdrawal of the type approval (article R. 321-10 of the French Highway Code); and
- more generally, manufacturers must recall all vehicles already sold, registered or put into service if the model in question presents a serious risk to road safety, public health or the environment In addition, they have to immediately inform the authority that issued the type approval thereof (article R. 321-14-1 of the French Highway Code). The General Product Safety Directive 2001/95/EC provides general guidelines that apply to recall of type approval vehicles.
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?
Product laws are very significant for the automotive sector: defective cars (or parts) are a source of particularly serious risks, which can potentially lead to road accidents, severe bodily injuries and significant material losses.
Under French product liability law, claimants bear the burden of proof to assess the product defectiveness and causation with the damage. This being said, there is a trend in French case-law making this burden of proof easier to meet for claimants by the resort of presumptions.
The automotive industry is one of the areas where product recalls and maintenance campaigns are very frequent. In 2018, on RAPEX (ie, the European Rapid Alert System for non-food products), 23 per cent of recalls originating from France related to motor vehicles. This includes recalls associated with defects and environmental issues.
Many questions are floating around concerning potential reforms of product laws. At European level, a consultation process is being led by the European Commission since spring 2017 to analyse whether the Defective Products Directive is still fit for purpose. One of the key questions is with respect to autonomous driving and the transposition of the notion of product and producer in this context. If the Commission considered that there was no need to change the Directive, it decided to elaborate guidelines with the assistance of two expert groups to clarify the main concepts of the Directive in the new technology context.
Class actions are an increasing risk for automotive manufacturers in France. This procedural option was introduced into French law by the Hamon Law of 17 March 2014, which came into force on 1 October 2014 and is available to consumers who are placed in a similar situation and have suffered a financial loss resulting from material damage caused by a professional. Only a limited number of registered associations can bring class actions where consumers can opt to join after a general judgment on the defendant’s liability has been made. It is worth noting that this system cannot be used to obtain compensation for bodily injuries.