Even after having analysed these developments within the Central European concept of fault, and having mentioned the ambiguity of the standard of liability required by the Directive, it still remains difficult to formulate definite conclusions regarding the differences or similarities in the liability standards. The ultimate question whether the claimant’s position in product liability litigation in Central Europe became less demanding with the implementation of the Directive thus remains unanswered. A further factor affecting this issue are the defences available to the defendant – these should enable the author to throw more light upon the claimant’s position. They are analysed below.

4. Defences in a ‘fault’ liability system of Central European tort law and in the ‘strict’ liability system of the Directive

In a fault liability system the main defence is obviously the lack of fault. However, in certain cases, especially those involving manufacturing or instruction defects, it was difficult for the manufacturer or another person to defend themselves in Central Europe. Mere showing that all due care had been taken in organisation and control of production did not suffice. Maximum care had to be shown to have been exercised by all those taking part in the distribution chain. Further, in Hungary and in some cases also in Poland, even maximum care was insufficient to relieve the defendant of liability. In Poland and the Czech Republic the argument of force majeure was acceptable, but the manner in which the concept itself was understood by the courts rendered proof a difficult task. In the Polish case of the Pepsi-Cola bottle, the manufacturer of the bottle attempted a defence by claiming force majeure.202 His arguments were rejected by the Court of Appeal. According to the court, a force majeure is an ‘unusual, external, impossible to prevent event, which is not an ordinary accident (casus). These are phenomena such as natural catastrophes (vis naturalis), the acts of public authorities which an individual cannot oppose (vis imperii), and military acts (vis armata).’203

At the moment the defences prescribed by Article 7 of the Directive, including the development risk defence,204 have been duly implemented by the Central European states. The only discrepancies between the Directive and the implemented texts are the Polish and Hungarian regulations of the defence of the defect not existing at the time the product was put

204The latter regulated by Article 7(e) of the Directive, Section 7(d) of the Hungarian Act, Section 5.1(e) of the Czech Act, and Article 449.3.2 of the Polish Civil Code.

into circulation (Article 7(b) of the Directive). While the Directive is satisfied with a mere probability that the defect did not exist at this point, both the Hungarian and Polish Acts (Article 449.3.2 of the Polish Civil Code and Section 7(c) of the Hungarian Act) require absolute certainty, and do not seem to be satisfied with the probability of non-existence of the defect. Whereas it is likely that such a difference has been conditioned by the divergences in the rules and requirements of procedure, and in particular the burden of proof and the necessity to prove a fact without doubt, not on the balance of probabilities, it may still lead to controversies. Considering the, already mentioned, maximum character of harmonisation provided by the Directive, stressed in the recent judgments of the European Court of Justice, this discrepancy may lead to an action being taken against these two states under Article 226 of the Treaty of Rome. Putting this lack of compliance with the Directive aside, however, has the position of the claimant improved with implementation, or has it become more difficult?

The defence of regulatory compliance was obviously unavailable throughout Central Europe. However, as explained above, this did not in any way improve the position of consumers – for the regulatory coverage of safety and quality of products within Central Europe during Socialism and a few years after was truly unsatisfactory.

In the regimes based upon fault a certain standard of care required of the defendants should not be a novelty; nevertheless it must be submitted that, at least in Hungary, the existence of the development risk defence introduces a standard of product liability less stringent than the one which the courts so bravely put forward. In fact, it can be said following the opinion of Maczonkai that ‘considering the doctrines and assuming the coherence of doctrine . . . only the defences of the producer who had never supplied the product and the product was not delivered with a view to profit could have prevailed’ in the traditional tortious liability regime established by the Hungarian courts.205 Could the defences prescribed by the Directive also be used in the traditional tortious liability regimes of Czechoslovakia, the Czech Republic and Poland? In contrast to Hungary, the development risk defence would be very likely to exonerate the defendant in these legal systems. The notion of ‘introduction into circulation’, as mentioned above, was popular in the product liability case law of Central Europe,

205Hungarian Product Liability Case Law under Civil Code and the New Product Liability Regime, in Hungary – From Europe Agreements to a Member Status in the EU (ECSA Europe, 1996) 117.

and therefore the defence of the product not having been put into circulation by the defendant was available even before the implementation of the Directive. Further, the defence of the product not having been introduced into circulation for business purposes could be used in these two jurisdictions. The entire movement within the Central European doctrine of law towards introduction of strict product liability was indeed rooted in the increasingly perceived need for stricter liability of professionals. Central Europe, in common with other post-Socialist states, only recently started to understand the concepts of ‘business’ and ‘business activity’ in the manner in which these concepts are understood in the West.206

A very interesting change appeared in the Central European laws with the introduction of the specific defence for manufacturers of spare parts (Article 7(f) of the Directive). In principle, the independent liability of the manufacturers of component parts did not exist in the Central European product liability regimes before the implementation of the Directive, as the component parts were not considered independent ‘things’ by virtue of the Civil Codes. Hence, apart from Hungary, where such a possibility was confirmed,207 there seemed to have been no prospect of suing the manufacturer of the component which caused loss. At present, in Hungary ‘the producer of raw material or a component shall be exempt from liability upon providing proof that: (a) the defect was caused by the structure or composition of the final product, or (b) the defect was the consequence of instructions given by the producer of the final product’; the Czech Act in Section 5.2 stipulates that ‘the producer of any constituent part of the product shall be exempted from his responsibility if such a producer is able to prove that the defect was caused by the construction of the product in which the constituent part was incorporated or that the defect was caused by the instructions for the use of the product’, and the Polish Civil Code in Article 449.5 stipulates that the producer of a raw material or a spare part should be free of liability if the sole cause of damage was defective construction of the product or the instructions provided by the producer of the final product. Although independent liability of the

206For instance the Polish Act on Economic Activity of 19 November 1999. See also Sengayen, ‘Consumer Sales’: 403.

207The case of ‘turnip cabbage seed’ opened the possibility of suing every producer, also the producers of component parts, together with the sellers. Maczonkai considered the development of the concept of assistant in performance as a particular advantage of the Hungarian contractual liability system over the Product Liability Directive and the Hungarian Product Liability Act.