Liability for damage caused by defective product in the Slovak Republic, by Adrian Zodpovednost

Relazione al Convegno "Il consumatore e la protezione transfrontaliera " tenutosi il 29 aprile 2010 presso l'Università Europea di Roma, nel ciclo seminariale Jean Monnet dal titolo "La protezione del consumatore. I rimedi giudiziali e stragiudiziali tra diritto interno e diritto dell'Unione Europea".

Act no. 294/1999 Coll. on liability for damage caused by defective product as amended, created a new type of civil liability in the legal order. From a conceptual point of view, the legal regulation was adopted in a separate Act especially because "the regulation of liability for a product represents a relatively new and dynamic sphere of legal regulation with probability of changes in communitarian and consequently in national legal regulation."[1]. Every legal order contains, apart from the main subject-matter of the regulation, statutory provisions which rely on the fact that legal obligations are not voluntarily executed by everybody“[2]. Regulation of liability in consumer protection comprises legally binding acts of the European communities and European Union as well as domestic laws belonging to the branch of private but also public law.
The fundamental problems regulated by a separate Act no. 294/1999 Coll. on liability for damage caused by defective product as amended by the Act no. 451/2004 Coll. (hereinafter „ALDDP“) is lex specialis to the Civil Code. „Act on liability for damage caused by defective product is a consequence of compatibility of our legal regulation with the Directive of the European Council no. 85/374/EEC on civil liability for defective products (hereinafter only „Directive“). The adoption of the Directive aspired to resolve two problems:
a) the protection of consumers who suffered damage due to defective products,
b) restriction of distortion of economic competition as a result of different legal regulation of liability in member states.”[3].
The Preamble of the Directive emphasises the need to approximate the legal orders of the member states of the European community in matters of liability for damage caused by defective products, whereas it points out the fact that eventual differences may distort the competition and have influence on the movement of products at the common market. The aim of this Act is to stipulate a certain procedure when considering the safety of products, rights and obligations of producers, distributors, importers and the control over the observance of this Act. The legislative drafter, in compliance with the laws of the EU, aims to describe all properties of a safe product and state criteria for its consideration.
Pursuant to article 2 of the mentioned Directive, the term 'product' is understood as all movables, excluding primary agricultural products and game, and even if they are incorporated into another movable or immovable. Primary agricultural products and game are defined as products of soil, stock-farming and fishery, excluding the products which underwent initial processing. Electricity is also a product.
The legal definition of the term product was adopted from the law of the European Union and was transmitted in section 2 of the Act on liability for damage caused by defective product, according to which a product is every movable which was produced, extracted or otherwise obtained, irrespectively of the degree of processing, and which is intended to be put into circulation. According to this Act, a product is also a movable which is a part or an accession of other movable or immovable. This way, electricity and gas are also considered as products because they are intended for consumption. The definition of the term product in the Act on liability for damage caused by defective product as to 1st January 2001 stretched beyond the definition stated in the Directive in its negative delimitation in section 2 subsection 2, under which agricultural and forest natural products, products of beekeeping and fishery and game are not considered as products, provided that they did not undergo initial processing. According to the Act, initial processing is every alteration which shall occasion change in the property of the product or add any other substances to it as well as packaging or other industrial alteration.
The need to regulate the qualitative requirements on products is justified by prof. Veber as: „The quality has one adjudicator only – the customer. He decides about the degree of appropriateness to satisfy his requirements. However, it cannot be supposed that the customer knows everything. Thus he specifies, especially in the sphere of safety and absence of defects in products, binding requirements on relevant values of properties in individual countries.“[4]. The above given opinion indicates that in the branch of consumer protection it is inevitable to create rules and control the distributed products especially for safety but also qualitative reasons. As correctly noted by Pelikán, the protection of consumers by means of public media must be preventive under all circumstances (i.e. consequential sanction shall also have preventive effect, be it generally or specially), because it is always more effective than the private protection of individual consumers which is always consequential [5]. The creation of rules and control presupposes clear delimitation of borders between a defective product and a product without defects, the determination of indicators, the presence of which shall indicate its defaults or defects. Pursuant to article 6 of the Directive, a product is defective when is fails to guarantee safety, which everyone is entitled to expect from it, taking into account all the circumstances including
a) The presentation of the product,
b) The use to which it could reasonably be expected that the product would be put,
c) The time when the product was put into circulation.
The product, however, shall not be considered defective for the sole reason that a better product is subsequently put into circulation[6]. The mentioned wording of the article 6 of the Directive was transmitted into our legal order in the provision of section 3 of the Act on liability for damage for defective product, in subsection 1, which sets out: „A product is defective under this Act if it fails to guarantee the safety of use or usage which may reasonably be expected from it especially with respect to
a) the presentation of the product and information about the product which the producer disclosed or should have disclosed,
b) the expected mode of use or usage and purpose for which the product may serve,
c) the time when the product was put into circulation.”
Similarly according to the Act on liability for damage for defective product, the product may not be considered defective only for the sole reason that a better product was put into circulation. It is important to draw attention to the fact that the Directive 2001/95/EC, as well as the Act on consumer protection no. 250/2007 Coll. (in sections 2, 6, 19, employ the term „dangerous product“, which shall be understood as a product failing to satisfy the requirements for a safe product under section 2 par g) of the Act on consumer protection.”[7].
Legal regulation on safe products in the Act no. 250/2007 Coll. on consumer protection as amended (hereinafter „ACP”) is grounded on the law of the European Union where the „safety of a product“ is also defined in the Directive no. 92/59/EEC of 29th June 1992 on general safety of products. The mentioned directive shall lay down general criteria on the safety of products especially in those cases where no directives on the safety of certain kinds of products have been adopted. Under the mentioned directive, a safe product is a product, which under normal and foreseeable conditions of use, evokes no or minimal risk connected with its use. The acceptability and consistency of such product shall be considered in connection with the properties of the product (composition, package, instruction, assembly and maintenance), effect on other products, the presentation of product and the category of consumers who represent a risk group (children).
In connection with the general delimitation of the terms safe product and defective product, it may be stated that defective products need not be dangerous, however, the opposite does not apply (even an outer aesthetic defect of the product with no effect on its function may occasion the defect according to the provisions on liability for defects of the products, nevertheless, this is not interchangeable with the defects under Directive 85/374/EEC or under the Act 294/1999 Coll.).
The aim of the regulation of compensation for damage caused by defective product is to adopt a new system of liability because of radical enlargement of the market (creation of single market) and the related increase in the risk for the consumer.”[8] The designation of the Act indicates that it concerns liability for damage which was caused by a defective product. It is an undesirable phenomenon which has direct impact on the property of the injured person. The explicit wording of section 6 subsection 1 of the Act on liability for damage for defective products makes a reference to compensation for damage pursuant to the provisions of the Civil Code. „Since liability for damage according to the Civil Code is constituted by an unlawful act, damage, causal relationship between the unlawful act and damage and usually fault, the liability for damage caused by the defect of the product is constituted by the following elements: defect of product, inflicted damage and causal relationship between the defect of the product and inflicted damage.”[9]. Pursuant to section 8 of the Act on liability for damage for defective product, liability for damage caused by defective product cannot be excluded nor restricted by a contract in advance. The person entitled to claim liability for damage caused by defective product under this law may only be a natural person, the injured person, who will most frequently be the consumer.
The liable person is predominantly the producer. According to the Act, the term „producer” is a legislative abbreviation with extensive meaning, which is characterized by an order of persons considered as producers under the Act on liability for damage caused by defective product. Firstly, it is the producer or another person who presents the product under his name, or registered mark; secondly, it is the importer (provided that the producer is not liable for certain reason), and finally it is the supplier of the product after statutory requirements are fulfilled. Pursuant to section 4 subsection 1 of the Act on liability for damage caused by defective product, including the plural form of this term, according to the Act, a producer is a person who produced the product, extracted or otherwise obtained, or who presents himself as a producer by affixing his name, trade mark or other distinctive mark to the product, which identifies him as the producer or which distinguishes him from other producers. Where the producer cannot be identified, the producer shall be considered every person who supplies the product, if he fails to disclose the name of the producer or the person who delivered him the product, within one month from the date of assertion of claim for compensation of damage to the injured person. The Act does not contain any provisions which would “directly exclude certain persons from the concept of producer, which may be significant from the perspective of business entities that are related to the defective product - owner of patent, invention or trade mark.”[10]. Under section 6 subsection 4 of the Act on liability for damage caused by defective product, if two or more producers are liable for the product, they are liable jointly and severally. The preamble of the Directive justifies joint and several liability by the fact that the consumer protection requires, the injured person could assert his claim for compensation for damage in full scope against any producer who is liable for this damage, and thus the position of the injured person is strengthened due to the fact that the chance to be granted compensation for damage also increases. The obligation “to compensation for damage” is generally conceived as material consequence of liability for inflicted damage (by defective product) unless the liable person manages to liberate (release from non-fault liability) for reasons stated in the Act. The severity of non-fault liability (irrespectively of fault) of the producer is moderated by section 5 of the Act on liability for damage caused by defective product, which provides liberation reasons in order to divide the risk between the producer and the injured person if he proves that:
a) He did not put the product into circulation or
b) Depending on the circumstances which preceded the damage, it may be presumed that the product was not defective in the period when put into circulation or the defect of the product occurred subsequently, or
c) He did not produce the product for sale or any other use or usage for business purposes, he did not distribute it within his business activities or
d) the defect of the product is a consequence of the obligation fulfilled by the producer arising from the generally binding legal regulation, or
e) the state of affairs of scientific and technological knowledge in the time, when the product was put into circulation, prevented the defect of the product be discovered.
Further, the Act in subsection 2 of the mentioned provision extends liberation reasons also to cases where the producer of a part of the product proves that the defect of a product was caused by construction of the final product or if the producer produced the part of the product according to the requirements of the producer of the final product, or if the damage was caused due to instruction for use of the final product. Based on the above, the producers may be released from joint and several liability in relation to that part where safe products were processed into the final defective product.
Apart from liberation reasons, it is possible to be released from liability based on fault completely or partially pursuant to section 441 of the Civil Code which lays down that “if damage occurred also due to fault of the injured person, he shall suffer damage proportionally; if it occurred due to his fault only, he shall suffer it alone.”[11]. In cases where the degree of fault and the compensation for damage are borne by the producer together with a third person who participated in the damage directly or indirectly, it is important to point out the section 7 of the Act on liability for damage caused by defective product [12], which defines the acting of third persons. In the given case, joint and several liability shall be excluded despite the fact that the third person participated in damage by his commission / omission. The sole person liable in this case is the producer. The producer who had to compensate for damage against the third person, may exercise his right to sanction under section 440 of the Civil Code: „A person who is liable for damage caused by another person is entitled to a sanction.“
Insufficiency of regulation of liability under the Act on liability for damage caused by defective product resides in the fact that the issue of liability is approached from the perspective of creation only and fails to devote adequate attention to compensation of damage from the perspective of content, scope and manner. This issue is governed by the Civil Code in sections 438-450. The concept of compensation of damage shall be understood as the scope of damage the injurer is obliged to compensate the injured person for or, to put it differently, what is the injurer obliged to pay. Taken from this perspective, it is important to distinguish whether the damage was caused to
a) things, resp. to material rights,
b) health, resp. to life.
Ad a): Damage caused to things, resp. to material rights at consumer protection
In cases of damage inflicted to things, resp. to material rights, under section 442 subsection 1 of the Civil Code real damage and the loss of the injured person (loss of profit) must be covered. The scope of compensation for damage shall be understood as the amount, it means how much the injurer is obliged to pay to the injured person. When determining the amount of damage to a thing, the calculation is based on the price of the thing which it cost at the time when damage occurred (section 443 of the Civil Code).
Inflicted damage is covered by money or by restitution into the previous state, ie to the state it was before the damage occurred. Compensation for damage in money allows the injured person to procure the same thing or another thing for this sum. In respect of the fact that the Act does not stipulate any maximum limit, in cases where the injured person would assert his claim in higher scope than he is really entitled to, the injurer may assert his right to be issued a motion for unjustified enrichment in the scope by which the injured person enriched himself.
The amount of compensation for damage caused by breach of duty resulting from a contractual relationship ensured by contractual penalty is regulated separately. Pursuant to section 545 subsection 2 of the Civil Code, the creditor is not entitled to seek compensation for damage caused by breach of duty where contractual penalty may be applied unless it was agreed on otherwise. Similarly, he may seek compensation only up to the amount not exceeding the contractual penalty; contractual parties shall make an agreement on the compensation of damage in full scope.
The amendment to the Civil Code (Act no. 568/2007 Coll. with the effect from 1st January 2008) separately resolved the issue resulting from the breach of duty in contractual relationship ensured by contractual penalty pursuant to section 545a of the Civil Code), when the creditor, who is not entitled to seek compensation for damage caused by breach of duty to which contractual penalty applies, and the amount of agreed penalty are not proportionate. For such cases when the amount of agreed contractual penalty prevails over the scope of inflicted damage, the legislative drafters introduced the discretionary power of the court. In such cases the court shall also take into consideration the scope of damage and the amount by which the contractual penalty prevails over the scope of inflicted damage.
If it is possible and purposeful and shall the injured person so request, damage may also be remedied by restitution into previous state (restitutio in integrum). This remedy may be carried out by the liable person himself or by another person upon the cost of the liable person. The Act allows the injured person to decide between the two forms of compensation for damage.

Ad b) Damage caused to health, resp. to life.
It is undoubtful that „ the main aim of the Directive 85/374/EEC [13] is compensation for damage to health and life. The technical and legal-theoretical problems rest in the determination of what the Directive means by damage. The source of dispute is the text of the Directive itself, which describes „damage caused by death or by personal injuries“. The provision is interpreted that way that personal injury is not a type of damage but a source.” [14].
The Directive 85/374/EEC (article 9) does not contain any positive or negative delimitation of non-material damage. The Directive employs the term damage which under national law of the member states has different meanings. „A similar term – dommage - used in the French version of the Directive is wide enough to comprise purely economic damage as well as mental distress.” [15]. „Non-material damage occurs as a result of breach of a legal duty in other than property realm of a natural person or legal entity so affected.” [16]. The issues of compensation of non-material damage bring about problems when implementing the Directive, especially in connection with reparation money, suffering and loss of amenity). Last provision of the article 9 of the Directive, which makes reference to national provisions, indicates that possibility of compensation exists; however, the present state leads to discrimination of injured persons based on citizenship which is in contradiction with the aim of the European Union.
In 1998 an attempt was made to amend the article 9 of the Directive which was to supplement the compensation for damage by the so called mental suffering, however, the proposal failed. „According to the opponents, this type of non-material damage is actionable also on the basis of the present provision of the article 9 of the Directive.”[17]. It is impossible to identify the term „non-material damage”, because this term is grounded on two contradictory pillars. In accordance with legal theory, damage is „material damage assessable in money”. As a result, it cannot be viewed as „non-material material damage “.
Legal regulation gives the injured party the right to moderate non-material damage [18], which resides in suffering and weakening of the social capacity of a person. The Civil Code does not define what is meant by reparation money or the weakening of the social capacity of a person, these issues are governed by an Act [19].
A maxim states that compensation must be proportionate to the nature of damage to health and the course of treatment. In case of the weakening of the social capacity of a person, the compensation must correspond with the nature of consequences and their expected development and it must be in the same scope as the opportunities of the injured person are restricted. Provisions of 446 – 447 of the Civil Code regulate what constitutes the loss of earnings and the determination of the loss of earnings of employed persons is based on relevant employment regulations. Loss of earnings is covered by pension.
Sums from pension which became payable, shall be awarded by the court in a collected sum; performances, which become payable in the future shall be determined by the court as repeated performance (annuity) [20]. The injured party is entitled to that part of the loss of earnings only, which is not covered by sickness or social security benefits. In practice, the section 447a of the Civil Code allows the granting of „compensation for such loss only which arose at pension as a direct consequence of decrease of earnings of the injured party resulting in damage to health” [21]. In cases of damage to health a person is also compensated for loss of earnings, loss at pension and purposeful expenses connected with treatment; it means only such expenses which are not covered by the funds of the health insurance company. In this case, the court may adequately decrease the scope of compensation for damage, provided that conditions are fulfilled and if it is specific case and the damage was not inflicted intentionally.
In the event of death, all expenses for maintenance of the bereaved shall be covered, unless these are covered by pension benefits, plus all funeral expenses. The coverage of expenses of the bereaved cannot exceed the amount of compensation for loss of earnings, which would have been granted to the deceased in accordance with provision of section 447a of the Civil Code.
The employment of the moderation principle, however, does not entitle the court to decrease damage discretionary or to release the injurer from compensation of damage in full scope. The court must resolve this issue (of exercising of the right to moderation) in the reasoning of the decision. After the right to compensation for damage arises, the injurer and the injured person can make an agreement on the limit of scope of compensation for damage.
The Directive gives an opportunity to overcome the principle of unlimited liability (article 16 section 1 85/374/ EEC [22]), in cases of damage to health or to life, on condition that it is damage caused by the same defective product with the same defect inflicted on several injured persons. The Act gives uses the possibility of option, when under certain conditions, the producer is liable for inflicted damage up to 3500 million Sk (Slovak crowns) / 116.178.720 € [23].
The Act also sets the minimum amount of compensation for damage when it states that the producer is liable for damage to other thing than the defective product only if the damage is in excess of 20 000 Sk/ 663,87 €.
Lapse of time is an inseparable part of exercising liability for damage caused by defective product. Act on liability for damage caused by defective product distinguishes between a subjective time-limit – time-limit for assertion of rights of the injured person to compensation and objective time-limit – time-limit during which the producer is liable for damage caused by his defective product. Two facts are decisive for the commencement of subjective time-limit, the knowledge of the injured person of the damage caused by defective product and knowledge of the injured party of the identity of the producer whereas both conditions must be fulfilled at the same time. The Act allows sooner period of commencement of subjective time-limit than the day when the injured person learned of the inflicted damage and the producer, and it is the day when the injured person could have learned of the damage and identify of the producer. The commencement of lapse of time has crucial importance especially in connection with the possibility to exclude negligence of the injured person, i.e. so that the injured person could not postpone the commencement of lapse of time. According to the law, objective time-limit is in the duration of ten years, whereas the commencement of time-limit is connected with the day when the defective product was put into circulation [24]. In case the conditions for the creation of objective liability of the producer as stipulated by the Directive, are fulfilled and if the injured person learned, resp. if it was reasonably foreseeable that he should have learned of damage, of defect and of identity of the producer, the injured person may assert his right to compensation for damage against the producer without any time-limit. The provision of section 415 of the Civil Code [25] regulating the prevention of damage may also be applied to the above given case.
Producers and distributors are obliged to provide relevant information to the consumers including the risks when products or services are used [26]. Exceptions from the directive are applied to products which are sold as second-hand like antiques or products which are to be adapted or restored before use but only on condition that the supplier notifies the consumer of this fact in advance.
Member states are primarily obliged to set up authorities to check the general safety of products and provide them with competencies to adopt all appropriate measures which would aim to check general safety or alternatively to determine conditions – to issue restrictive prohibitory orders to caution, to organize the withdrawal of products from the market in effective way. When determining the restrictions on the introduction of products to market or on the withdrawal of products from the market, there exists a general duty to provide information about this fact within the communities.
„Health and safety of the consumer represent values which are significant not only in relation to the right of the consumer to be aware of properties of products which is guaranteed by means of right to information. The role of the law of consumer protection is to create legal and factual state which would ensure that products, the properties of which may endanger the safety or health of the consumer, are in reality, healthy and safe.” [27].
The protection of health and safety of consumer belongs to fundamental rights of the consumer.
A safe product is considered to be any product which presents no or minimal risk when being used. It must be in accord with the Treaty on EC and with special regulations of national law of the member state on the territory of which the product circulates. The mentioned provision is, however, not applied to food products (they are regulated by the Act on food no. 152/1995 Coll.)
The product must fulfil the conditions of general safety:
- safe products may only be introduced to the market,
- a product is safe if it meets all the requirements which are set by the relevant legislation
In 1975 the Council of the EC adopted the first programme on consumer protection and information policy which laid down 5 fundamental rights of consumer:
- right to protect health and safety of the consumer,
- right to protect economic interests of the consumer,
- right to be compensated for damage suffered,
- right to information and education
- right to collective representation of interests connected with consumer protection.
The above formulated rights indicated that the programme of social protection of consumer stretched beyond safeguarding the single internal market. At present, consumer protection is embodied in the Treaty establishing the EC as amended by the Amsterdam Treaty and Nice Treaty in such a way that the sphere of consumer protection is formulated as a separate policy of the Community. The Treaty created high level of consumer protection as a criterion to adopt harmonization measures in the sphere of all fundamental freedoms to the same extent. The purpose of the European consumer protection is generally the protection of persons who are involved in legal relations of market economy with no aim to obtain profit. „A typical feature of the European consumer protection is the protection of the weaker contractual party and attenuation of borders between private and public law.” [28]. Consistent law of consumer protection does not exist in the EU at the present. Despite the legislative enactment, the policy in the sphere of consumer protection is without its own concept. The Amsterdam Treaty confirmed the principle of subsidiarity. In practice, it ensures high level of consumer protection applying the vertical principle of subsidiarity according to which the measures of the European Union shall not substitute national or regional legislation but create minimum (supportive) limit in consumer protection.
„The legal basis of this issue is the Directive 92/59/EEC on general safety of products which created a precondition for the foundation of general safety requirement for all products introduced to market provided that they are designed for the consumer or that the consumer may use them. The producers may introduce only safe products to the market. The directive, however, does not stipulate any criteria for the determination of safety. The inclusion of the sphere of safety and health protection of the consumer thus rightly ranks among one of the main aims of the consumer policy of the European Union.” [29].
The conformity with the requirements of the directives is marked as CE on the products.
The principles of labelling with CE marking:
 The CE marking symbolizes the conformity of the product with valid requirements of the community demanded from the producer
 The CE marking fixed on the products is a declaration of the accountable person that:
- The product conforms with all valid provisions of the Community
- Approval procedures were laid down to determine conformity.
„Member states are not allowed to restrict the placement of products with CE marking at the market and their introduction to use, unless these measures can be proved by evidence of non-conformity of the product.” [30].
At present, many authorities and organizations in Slovakia participate in protection of safety and health of consumer – Slovak Trade inspection, Slovak food and veterinary inspection, National veterinary and food administration in the Slovak republic, Public health authority of the Slovak republic, testing institutes and others. Apart from these, two non-governmental organizations operate in our country – the Association of consumers in Slovakia, Association of consumer entities in Slovakia.
Member states of the EU have one of the highest safety standards for products in the world. The EU devotes most attention to testing pharmaceuticals and medical devices and of course, food. Adopted directives and regulations ensure that strict measures in safety of products are carried out. On the basis of this, the EU introduces and operates many new safety systems which serve as certain systems of control of observance of safety regulations.
Safety systems of the union:
a) RAPEX (Rapid Exchange);
b) TRAPEX (Transitional RAPEX);
c) RAPEX-EHLASS (Rapid Exchange - European Home and Leisure Accident Surveillance System);
d) RASFF (Rapid Alert System for Food and Feed);
e) System of alertness for medical apparatus;
f) REACH (Registration, Evaluation and Authorisation of Chemicals) [31].
In its preamble the Directive governs the relation to other legal regulations of civil liability in two directions, in the article 13 of the Directive where it states: „This Directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified” as well as in the article 14 of the Directive: „This Directive shall not apply to injury or damage arising from nuclear accidents and covered by international conventions ratified by the member states.”.
Firstly, the directive clearly delimitated its relation to the regulation of civil liability in respective member states. Thus, it gives the injured person the opportunity to choose the law.
Secondly, it explicitly embodies the exclusion of application of the directive for injuries or damage caused by nuclear accidents since this liability is regulated by special legal regulations in all member states (the Preamble states).

Conclusion
Legal regulation of consumer protection originally arose from the need of larger intervention of the state due to relatively poorly developed market economy, which was gradually modified with the aim to support business activities but with consequential firm delimitation of legal framework of business activity. It was much easier for the Slovak republic since in respect of the historical development of our society, it could draw readymade ideas to improve consumer protection from those countries whose market economy was on high standard. It is logically good to exchange experience and knowledge with other countries, however, we should always bear in mind that each of these countries has its specifics of development which are reflected in their legal regulations. This knowledge makes it possible to create such framework of consumer protection in our conditions which would effectively influence the conduct of entities in consumer relations.
I do not think that legal regulation of consumer protection in the Slovak republic remains behind the expectations of the EU which derives from the European legislation and decision-making of the ECJ. I believe that the Slovak republic as a novice, after its accession to the EU, puts much effort to harmonize national economy with the law of the EU.
In conclusion, this article indicates that the Slovak republic approached the issue of consumer protection actively also from the point of view of liability for damage caused by defective product in the context of europeization of legislative activity in the sphere of consumer protection, even though there is still some space left for its improvement.

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Notes:

[1] Kalesná, K.: Zodpovednosť za výrobok. Právny obzor, 81,1998, no. 3, p.291.
[2] Škultéty, P. a kol.: Správne právo hmotné. Všeobecná časť. Bratislava, Vydavateľské oddelenie PFUK 2005, p. 136.
[3] Ovečková, O.: Zodpovednosť za škodu spôsobenú vadným výrobkom. Podnikateľ a právo, no. 4, year 2000, p. 3.
[4] Veber J. and others: Řízení jakosti a ochrana spotřebitele, Grada Publishing, Praha 2007, p. 37.
[5] Pelikán T.: Ochrana spotřebitele ve správním právu, http://www.ak-pkk.cz, chapter I.2.E.
[6] Section 2 par g) of the Act no. 264/1999 Coll. on technical requirements on the products and on the consideration of conformity as amended and supplemented by certain laws.
[7] Vojčík, P.: Občiansky zákonník, Stručný komentár, IURA EDITION, Bratislava, 2008, p. 644.
[8] Gavalec, M.: Európske civilné právo. Justičná revue, č. 3/2000, year 52, p. 258.
[9] Hulva, T.: Ochrana spotřebitele, Aspi, a.s., Praha: 2005, p. 105.
[10] Dulák, A.: Zodpovednosť za škodu spôsobenú vadným výrobkom, Vydavateľské oddelenie Právnickej fakulty UK, Bratislava 2002, p. 51.
[11] Act no. 40/1964 Coll. Civil code as amended by subsequent regulations
[12] Section 7 subsection 1 of the Act on liability for damage caused by defective product „ If damage was caused by both the defective product and the commission or omission of a third person, the producer shall be liable for damage in full scope.“ Subsection 2 „ Where the producer is liable for damage under subsection 1, he has a right to a sanction against a third person.“ References to the text: Section 440 of the Civil Code.
[13] Directive of the Council of 25th July 1985 on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products.
[14] Whittaker, S.: The EEC Directive on Product Liability. 5 Y.E.L, 1985, p. 271.
[15] Whittaker, S.: The EEC Directive on Product Liability. 5 Y.E.L.1985, p. 271, and there quoted work in note no. 192.
[16] Večerková, E.: Nekalá soutěž a reklama (Vybrané kapitoly), Masarykova univerzita, Brno 2005. p. 140.
[17] Dulák, A.: Zodpovednosť za škodu spôsobenú vadným výrobkom, Vydavateľské oddelenie Právnickej fakulty UK, Bratislava 2002, p.91.
[18] The Slovak legal order in general, concretely the Civil Code defines non-material damage in provisions of sections 31 subs 1, 442, 442a (directly used non-material damage) and in sections 19b and 509 of the Civil Code (reasonable satisfaction) and Commercial Code in delimiting reasonable satisfaction sections 12 and 53 of the Commercial Code. Reasonable satisfaction in the branch of consumer protection may be encountered in section 3 subs 5 of the Act on consumer protection – note of the author .
[19] Act no. 437/2004 Coll. – Act on compensation for pain and on compensation for the weakening of the social capacity of a person as amended by the Act of the National council of the Slovak republic no. 273/1994 Coll. on national insurance, financing of medical insurance on the creation of the health insurance company Všeobecná zdravotná poisťovňa and on creation of departmental, branch, business and civil health insurance companies as amended.
[20] Section 154 of the Act no. 99/1963 Coll. (Code of Civil Procedure) as amended.
[21] R 13/1989.
[22] Any member state may provide that a producer’s total liability for damage resulting from a death or personal injury and caused by identical items with the same defect shall be limited to an amount which may not be less than 70 million Euro.
[23] Rate of conversion 1€ = 30,1260 Sk is under Act no. 659/2007 Coll. on the introduction of the euro currency as amended.
[24] In this connection it is important to point out one of the latest decisions of the ECJ in the case C-358/08 Aventis Pasteur SA versus OB of 2/12/2009 which defends the possibility of „prolongation“ of the 10-year period under art. 11 of the Directive of the Council 85/374/EEC interpreting it that the mentioned article does not contradict with the finding of the domestic court in proceedings commencing within a 10-year period against the 100% subsidiary of the producer under art. 3 s.1 of the directive, the subsidiary may be substituted for the producer of the defective product even after the expiration of this period, if based on the circumstances of the case, the court ascertained that the introduction of the defective product was in fact decided by the producer.
[25] Every person should act in such way so that damage to health, property, nature and environment is prevented.
[26] Pistovič, J.: Slovensko a Európska únia: Ochrana spotrebiteľa. Bratislava : Grafis, s.r.o. pre Úrad vlády Slovenskej republiky a Slovenskú obchodnú a priemyselnú komoru, 2004. p. 9.
[27] Drgoncová, J.: Spotrebiteľské právo v SR a v EÚ: Heuréka, Šamorín, 2007, p. 425.
[28] Salač, J.: K povaze evropského práva na ochranu spotřebitele. Právni rozhledy, supplement to no. 6/2000, year 8, p. 3.
[29] Drgoncová, J.: Spotrebiteľské právo v SR a v EÚ: Heuréka. Šamorín, 2007, p. 426.
[30] Pistovič, J.: Slovensko a Európska únia: Ochrana spotrebiteľa. Bratislava : Grafis, s.r.o. pre Úrad vlády Slovenskej republiky a Slovenskú obchodnú a priemyselnú komoru, 2004, p. 9.
[31] VIZ: Korčoková, M.: Legislatíva a ochrana spotrebiteľa v únii, Hospodárske noviny, 7.12.2005, http://www.hnonline.sk/1-10025510-22811385-k06300_detail-5e.

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