• In the case of European Commission v UK C.M.L.R. 923, it was held that there was no obvious conflict between the wording of the EU’s overarching Council Directive 85/374/EEC Article 7(e) and the UK’s Consumer Protection Act 1987 section 4(1)(e). Both concerned excluding the producer’s liability for a defective product where the state of scientific or technical knowledge did not allow them to find the defect. Allegations that the 1987 Act afforded a wider defence than the Directive intended were not made out.

Facts of the Case

  • C brought an action for a declaration that D had failed to properly implement Directive 85/374 concerning defences for product liability.
  • The Directive Article 7(e) stated that the producer of defective products was not liable if they proved that ‘the state of scientific and technical knowledge when the product was put into circulation did not enable the existence of a defect to be discovered.’
  • The 1987 Act Section 4(1)(e) provided the defence that a producer of defective products who shows ‘that the state of scientific and technical knowledge at the time was not such that a producer of goods of the same description might be expected to have discovered the existing defect while the products were under his control.’
  • C argued that the 1987 Act failed to transpose the Directive. The Directive’s defence referred to the objective state of knowledge of the producer, not their capacity to discover the defect.
  • C argued that it was easier for a producer to demonstrate the requirements for the 1987 Act than the Directive.
  • C argued that the language of the 1987 Act clearly ran counter to the wording of the Directive and could not be construed consistently except by deliberately interpreting the words against their meaning.
  • D accepted that the Directive’s test was objective but argued that the 1987 Act had successfully transposed it.


  • Was the test under the 1987 Act significantly more lenient than the objective test set by the Directive?

Held by the European Court of Justice (Fifth Chamber)

  • Finding for D, that there was no obvious contradiction between the wording of the 1987 Act and the Directive. As such, the UK had successfully transposed the Directive.

Mr Advocate General Tesauro

  • C may bring action against a Member State on the ground that the wording of a national provision is at odds with the formulation of the EU provision. It is not enough to infer from different wording that the State is breaching its obligations as the provisions do not necessarily need to be reproduced verbatim.
  • To succeed, C must show that the wording of the 1987 Act is capable of only one interpretation which is manifestly and completely different from the EU provision, and therefore incompatible.
  • The provision is not concerned with the practices and safety standards in use in the industrial sector in which the producer is operating. The producer’s conduct should be assessed using the yardstick of the knowledge of an expert in the sector.
  • The state of scientific knowledge cannot be identified with the views expressed by the majority of learned opinion, but with the most advanced level of research which has been carried out at a given time.
  • I cannot share C’s claim that there is an irremediable conflict between the Directive and the 1987 Act. The 1987 Act does contain an element of potential ambiguity; in referring to what might be expected of the producer, it could be interpreted more broadly that it should. However, this does not necessarily authorise interpretations contrary to the Directive’s intentions.
  • “The reference contained in the Act to the producer’s ability to discover the defect is not sufficient to make the test which it lays down subjective. That reference can certainly be regarded, as D has argued, as an objectively verifiable and assessable parameter, which is in no way influenced by consideration of the actual subjective knowledge of the producer or by his organisational and economic requirements. By virtue of that parameter, it must therefore be proved, in order to exclude liability on the part of the producer, that it was impossible, in the light of the most advanced scientific and technical knowledge objectively and reasonably obtainable and available, to consider that the product was defective” [27].