What about a future European Safety Act ? June 8, 2012 Noëlle Lenoir

(France) 1986, September 17: Paris, Rue de Rennes, street bomb, 7 dead, 54 injured (Spain) 2004, March 11: Madrid, commuter train, coordinated bombings, 191 dead, 1,800 injured (UK) 2005, July 7: London, public transport system, coordinated suicide attacks, 52 dead, 700 injured (CCTV surveillance helpful to identify the authors) Terrorism Risk in Europe

European Union Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism harmonizes definition of terrorist offences, ensures that EU countries establish appropriate penalties and sanctions, sets out jurisdictional rules to guarantee that terrorist offences are effectively prosecuted, and adopts specific measures with regard to victims of terrorist offences Counter-Terrorism Strategy (2005) Citizens and critical infrastructures: prevent, protect, pursue and response European Responses to Terrorism

Council of Europe 1983 European Convention on the compensation of victims of violent crimes (ETS/116) Harmonizes minimum provisions on the compensation of victims of violent crimes (not only terrorism) including foreign victims 2005 Convention on the Prevention of Terrorism (CETS/196) Introduces a principle of liability of legal entities (States) European Union 2004 Directive on compensation to crime victims Provides for the victim’s right to submit an application in the Member State (MS) on whose territory the crime was committed to pay compensation (especially when the offender is unknown or unable to provide it) Focus on Compensation of Victims

National legislation in Europe No harmonized legislation on liability for damages caused by terrorist acts Diversity of national liability legal regimes: tort, strict liability, contractual liability, liability for defective products No collective redress (class action) except in the UK (a consultation launched on the subject by the Commission in 2011) No punitive damages: except in the UK, (the subject has been discussed at the EU level, but are criticized since a widespread belief is that the injured party may not be enriched as a result of the damages awarded) Diversity of National Liability Regimes in EU Countries

Directive 85/374 of 25 July 1985 This Directive is aimed at: - preventing distortion of competition due to divergent legislation; - ensuring an equal protection of consumers against damages to their health and property The producers’ liability is without fault covers all damages (except those caused by nuclear accidents) Liability may be capped by MS in their national legislation The victim carries the burden of proof only with respect to (a) the actual damage, (b) the defect in the product, and (c) the causal relationship between damage/defect The producer may be exempted from liability especially if the state of scientific and technical knowledge at the time when the product was put into circulation was insufficient to identify the defect (“Development Risk Defense”) Certification of the product – if it exists - is not a cause of exemption. EU Legislation on liability for defective products

Public regime for compensation of victims of acts of terrorism State compensation schemes for personal injury France: a Compensation Fund offers full compensation to any victim of terrorist attacks committed on French territory In most other EU/MS: Compensation is paid by the State Terrorism insurance schemes for damages to property France: mandatory participation for all insurers + mandatory coverage of terrorism risks in property policies Germany: separate primary insurer specialized on large terrorism risks National Legislation on Compensation of Victims of Terrorism

Changes to be expected in case of adoption of an EU Safety Act? Mandatory & harmonized certification An EU Safety Act would provide an EU common certification system for security products (and/or a mutual recognition system) Exemption from liability linked to certification It could entail that certification is retained as a cause of exemption of liability Cap on damages Such possibility would likely be of a more limited impact so far (in case of full compensation low level damages fixed by the courts; no collective redress; no punitive damages; damages capped with regard to compensation for property). But this may change… Possible implications of a European Safety Act

Contact Details Noëlle LENOIR Avocate Associée, Ancienne ministre KRAMER LEVIN NAFTALIS & FRANKEL LLP 47 Avenue Hoche PARIS Tel : Fax :