Date: 2008
Type: Working Paper
Product Safety, Private Standard Setting and Information Networks
Working Paper, EUI LAW, 2008/17
CAFAGGI, Fabrizio, Product Safety, Private Standard Setting and Information Networks, EUI LAW, 2008/17 - https://hdl.handle.net/1814/9007
Retrieved from Cadmus, EUI Research Repository
This essay deals with product safety and liability, looking in particular at the
interaction between regulation, contract and civil liability. Risk definition, assessment
and management in product safety has changed in the last 20 years, and a well
recognised role is played by private actors both in standard setting, in monitoring and
risk management concerning post sale duties. Post-market surveillance has become a
crucial part of the risk management strategies, but the regulatory dimension has not
been sufficiently linked with that of governance.
In the first part, I examine the current review of product safety at EU level with
the proposed regulation on market surveillance and its relationship with the broader
debate concerning better regulation.
In the second part, I show the increasing contractualisation of standard-setting
concerning safety and product defectiveness, which influences both regulation and civil
liability systems. In both cases, however, insufficient attention has been given to the
implications of such a contractualisation for liability standards.
I then move to information duties in product safety and product liability and
claimed that business models of the supply and distribution chain may be affected by
the regulatory design concerning product safety. I contend that a reform of the General
Product Safety Directive and Product Liability directive should promote the creation of
more structured information networks, aimed at making information production and
transmission concerning product safety more effective. Enterprises should be
constrained by the safety goals, but they should enjoy discretion in choosing
organisational models that best fit with their business models. In particular, the
distinction between hierarchical and horizontal networks should be fruitfully employed
to design default rules organising the information safety network. This would be
particularly important for pan-European networks which have to coordinate enterprises
operating in different legal systems with different institutional frameworks. I propose to
introduce default rules concerning information networks that parties can adjust to their
specific business models.
Private law and regulation interplay in the field of product safety. Not only it
happens between administrative regulation and civil liability, as it has long been
recognised, but also with contract law, given the increasing contractualization of
standard-setting and the necessity to build contractual networks to implement
monitoring of product safety in modern market economies. These examples suggest that
the current approach to harmonisation of European Private Law is limited and does not
reflect the necessity to coordinate different instruments to pursue unitary policy
objectives: producing higher and more effective product safety in Europe at reasonable
costs.
Cadmus permanent link: https://hdl.handle.net/1814/9007
ISSN: 1725-6739
Series/Number: EUI LAW; 2008/17
Publisher: European University Institute