Product liability under the CISG and Concurring tort law claims ...

4.4.2.1. The effect of the EC Directive on Product Liability
The growing body of European private law results in more and more overlaps with the Convention. This
raises the question of whether European legislation takes priority over the Convention or not?
This question has been much debated, because allowing EC directives or regulations to take priority over
the Convention will interfere with the well-balanced rules in the Convention and the main goal of achieving
uniformity in international trade. It could lead to a split in the application of the Convention, depending on
the court in which the suit has been filed. This in effect could have a devastating impact on the success of
the Convention as an instrument in international trade.
However, precedence must presumably be given to product liability laws based on the EC directive by virtue
of art 90 CISG. Although a directive is not an international agreement as such, which is the requirement to
enjoy priority according to art 90 CISG, it has its basis in the EC Treaties, which are international agreements.
Because of this connection some scholars are of the opinion that directives are to be regarded as
international agreements under art 90 CISG and consequently enjoy priority. 120
It is this authors opinion that art 90 CISG should be construed narrowly because it represents an exception
to the main rule in art 1 CISG, i.e. that the Convention governs contracts for the international sale of goods.
This, coupled with the dangers of destroying the uniformity which the Convention represents, leads this author
to the conclusion that caution should be taken before allowing directives and regulations to constitute
international agreements.
The EC Product Liability Directive of 25 th of July 1985 121 has been adopted by the member states of the European
Union and product liability laws in these states will, to a certain degree, be based on this directive.
However, because the directive governs only death or personal injury to buyers and damage to consumer
property, 122 the directive barely overlaps with the Convention which, as has been stated previously, does not
govern death or personal injury cf. art 5 CISG nor consumer relations cf. art 2(a) CISG. 123
Thus the question of whether EC law takes priority over the Convention does not merit much consideration
in this thesis, since it does not have much practical relevance. Therefore, and after establishing that the
topic has a relatively small place in the product liability scheme, the issue will not be treated any further.
120 See Herber in Schlechtriem/Thomas page 51 para 14 and page 689 para 12, who is of the opinion that EC Directives
are to be regarded as international agreements according to art 90 CISG, and Huber page 28 section bb) and Ferrari
page 76-77 section VI, who arrive at the opposite conclusion because directives have to be transformed into national
law to have effect. See also Schlechtriem, second edition page 922 para 12b and 13 who regards it as the most desirable
solution to not view EC Directives as international agreements in order to protect the well-balanced regime of the
CISG, though admitting that it is difficult to find watertight reasons that will convince the European Court of Justice of
this solution.
121 EC Council Directive 85/374.
122 Cf. art 9 of the Directive. Consequently, the directive does not govern damage to property owned by companies
which is the relevant part governed by the Convention.
123 Schlechtriem, second edition page 922 para 12a and Huber page 28 section bb) who both concurs with this authors
conclusion.
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