Newspaper Advice That Causes Damage Is Not Covered by the Product Liability Directive: The Court of Justice of the European Union’s Clarification in Krone

Abstract

The Product Liability Directive,1 which was adopted more than thirty-five years ago, deals with liability for defective products and is one of the most important European Union (EU) legal acts in the field of consumer protection law. Similarly, it is one of the rare EU legal acts that deals with fundamental issues of civil law such as liability for the damage caused.2 Despite the fact that the Directive has been in in force for almost four decades, it has been subject only to one amendment in 1994. This amendment dealt with the legal definition of the term “product”, which led to revised wording of Article 2 in addition to the amendment of Article 15.3 The Directive has been interpreted several times by the Court of Justice of the European Union (CJEU), especially based on preliminary rulings commencing with the CJEU’s judgment in Veedfald of 10 May 2001.4 One of the most significant aspects for the application of the Directive concerns the differentiation between a service and the medium (being a movable) through which that service is provided.5 Resolution of this issue determines whether damage caused by that service is also covered by the Directive (there is a common ground that the damage caused by the medium itself falls within the scope of the Directive). This issue recently came before the CJEU in Case C-65/20 Krone – advice published in a newspaper was followed by a consumer, who suffered harm as a result. The question referred to the CJEU by the national court concerned whether this claim for damages arising from “defective” newspaper advice (ie a health service provided