1. Liability for Defective Products

2. Background
A system of strict product liability had developed in the U.S. by the early 1960s, but not in the countries of the then European Economic Community. The Council adopted a resolution in 1975.

3. If a product bought in the EU is damaged or doesn't work, EU consumers can ask for compensation.

4. EU legislation on liability for defective products
Directive 85/374/EEC on liability for defective products was adopted in 1985.

5. Which products fall under the legislation?
This legislation applies to any product marketed in the European Economic Area. Compensation for material damage is limited to goods for private use or consumption with a lower threshold of €500.

6. Rights of producers they did not put the product into circulation
the defect was due to the compliance of the product with mandatory regulations issued by public authorities
the state of scientific or technical knowledge at the time the product was put into circulation could not detect the defect

7.   
Commission actions
The evaluation will assess the Directive according to 5 criteria:
effectiveness (have the objectives been met)?
efficiency (were the costs involved reasonable)?
coherence (does the Directive complement other actions or are there contradictions)?
relevance (is EU action still necessary)?

8. Polish legislation implementing the Product Liability Directive
    
Date of implementation
The directive 85/374 was implemented by the Act of 2 March 2000 on the protection of certain consumer rights and the liability for damage caused by dangerous product (Official Journal of Laws No 22 of March 2000, item 271) which came into force on 1 st of July 2000

9. Article 1
The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.
The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.

10. Article 2 For the purposes of this Directive:
‘unfair terms’ means the contractual terms defined in Article 3;
‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;
‘seller or supplier’ means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.

11. Article 3
A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.
A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.
The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.
Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

12. Unfair Terms
Limiting liability due to death, non-performance of the seller or agents of the seller
Requiring the consumer to perform even if the seller does not
Forcing the consumer to pay disproportionately high cancellation fees
Enabling the seller to alter the terms without notice
Binding the consumer to the contract while giving the choice of performance to the seller

13. Article 4
1.   Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
2.   Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.

14. Article 5
In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail. This rule on interpretation shall not apply in the context of the procedures laid down in Article 

15. Article 6
1.   Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.
2.   Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States.

16. Article 7
1.   Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.
2.   The means referred to in paragraph 1 shall include provisions whereby persons or organizations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.
3.   With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.

17. Article 8
Member States may be or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.
Meaning: Allows us to maintain or adopt more stringent provisions to protect consumers from unfair terms in contracts, which may be brought in bad faith or without his knowledge. In addition, consumers hardly know the legislation of foreign states, and it is therefore essential to remove unfair terms from those contracts with all the weapons at our disposal.

18. Article 9 The commission shall present a report to the European Parliament and to the Council concerning the application of this Directive five years at the latest after the date in Article 10 (1).
Meaning: Explains that within 5 years as of December 31, 1994, date of entry into force of this Directive, the Commission must submit to the European Parliament and the Council a report on these Directives.

19. Article Member States shall bring into force the laws, regulationsand administrative provisions necessary to comply with this Directive no later than 31 December They shall forthwith inform the Commission thereof. These previsions shall be applicable to all contracts concluded after 31 December When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official pubblication. The methods of making such a reference shall be laid down by the Member States. 3. Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission.
Meaning: All contracts entered into after 31 December 1994 will follow the laws, regulations and Administrative of this Directive; Member States shall adopt the procedure for such references; Member States subsequently communicate to the Commission the text they will adopt in the field covered by this Directive.

20. Article 11 This Directive is addressed to the Member States Done at Luxembourg, 5 April For The Council The President Niels Helveg Petersen
Meaning: Simply tells us who are the recipients of the directive

21. Unfair Contract Terms Directive & Poland
The system of monitoring the fairness of terms in all member states can be classified into four different models, here we would talk about Poland.

22. Thought Process
A number of member states follow the concept of Directive 93/13, in which the content review is restricted to B2C contracts and only terms not individually negotiated can be controlled. These are UNITED KINGDOM, IRELAND, SPAIN, GREECE and ITALY (although some of these member states provide a black list for certain individually negotiated clauses). Amongst the new member states BULGARIA, CYPRUS, POLAND, ROMANIA and SLOVAKIA have opted for this model.

23. Short History
Before 1990:
In 1933 Art. 71, 72 of the POLISH law of obligations already contained provisions on unfair terms. Although Polish civil law was familiar with the concept of review of contractual clauses, the level of protection for consumers was very different to the one prescribed by the Directive, especially up until 1990.

24. Short History
After 1990:
Since 1990 certain mechanisms for consumer protection have been established in the Civil Code. By virtue of CC Art. 384 the Council of Ministers could, by means of a regulation, specify particular conditions for concluding and executing contracts with consumers (normative ‘standard forms’), if it was justified by the aim of protecting consumer interests. In fact, the Council adopted only one regulation with a limited scope of application on 30 April 1995 (on the conclusion and execution of contracts of sale of movable goods with consumers)

25. Summary
The Directive was transposed by the Act on the protection of some consumer rights and liability for damage caused by a dangerous product of 2 March 2000 amending the Polish Civil Code of 1964 – Arts The new concept distinguishes between forms used in all contracts, those used in contracts between professionals (traders) and those used in contracts with consumers. A review of the incorporation of standard terms is according to CC Art. 384 in principle not confined to B2C relationships, but yet stronger provisions on incorporation apply to consumer contracts. The battle-of-forms rule in Art. 485, modelled on Art. 2:209 PECL, on the other hand, relates only to B2B contracts. A review of the content of standard terms is limited to B2C transactions. The notion of “consumer” differs from the Directive, since a person can also be regarded as a consumer when he is concluding a contract for a purpose not directly related to his business.

26. Conclusion
Since transposition of Directive 93/13, Polish law also contains in Art et seq. of the Polish Civil Procedure Code rules on the abstract review of terms in collective proceedings for the first time. Standing is enjoyed not only by consumer associations, local consumer ombudsmen as well as the President of the Office for Competition and Consumer Protection, but every person, who could have concluded the contract following an offer by the user. If the designated consumer court in Warsaw prohibits the use of a certain contractual clause, the decision is published in the Economic and Court Journal and entered in a register with the President of the Office of Competition and Consumer Protection. Once the judgment has been published in the Register it has general effects. The Register is open to the public, and at present it contains more than 1000 clauses.