Inadequate odorization of biomethane in the light of the Product Liability Directive GESP Research Day 19 September 2013 University of Groningen

Overview “What’s in a smell?” Risks and consequences of inadequate odorization of biomethane. (publication in Journal for Renewable Energy Law & Policy) Product Liability Directive Conclusion

source: Endress + Hauser

Odorization of Biomethane Biomethane v. Natural gas Criteria: 10 – 40 mg/Nm3 THT (C4H8S) Odor masking by Limonene (C10H16) source: phmsadotc.sabanow.net

Who is liable? Actors: Injured person / injured parties Supplier Distribution System Operator Biogas producer / biomethane injector Liability regime differs per Member State the Product Liability Directive

Product Liability Directive Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. Last amended by Directive 1999/34/EC Main objective: harmonize consumer protection The principle of liability without fault

Scope of the Directive Movable products Exclusion of agricultural products and game (products of hunting); unless these products have been processed in an industrial nature Is Biomethane a movable product? Art. 2 includes electricity, not gas Product: a thing that is produced during a natural, chemical or industrial process (Oxford) Movable: able to be taken from one place to another (Oxford)

Defective product? Expectation test Case law Presentation of the product; The use to which it could reasonably be expected that the product will be put; The time when the product was put into circulation. Case law Infected blood cases (UK & the Netherlands)

Development risks defence I Art. 7 (e): the state of scientific and technical knowledge at the time the product was put into circulation was not enable the existence of the defect to be discovered. Case law German water bottle case

Development risks defence II High Court (UK): Unknown risks are unlikely to qualify by way of defence within art. 6 (expectation test). They may, however, qualify for art. 7 (e). Known risks do not qualify within art. 7 (e), even if unavoidable in the particular product. They may qualify within art. 6 if fully known and socially acceptable.

Conclusion Producer can be held liable Producer ≠ injector However, not in all cases Producer ≠ injector Unclear who can invoke Development Risks defence Can the supplier or the DSO also (partially) be held accountable?

Thank you for your attention Questions? Daisy G. Tempelman, L.LM d.g.tempelman@rug.nl +31 (0)50 – 363 24 18