Empirical Legal Studies

Unsafe products in e-commerce

European product safety law is one of the focal points of internal market legislation.

The main goal of European product safety law is the prevention of harm from occurring. Product safety law’s market surveillance and enforcement is left to the member states. The obligations for economic operators therein are seen as being of a more public law nature (opposed to private law). The private law counterpart of product safety law is the Product Liability Directive (85/374/EEG). Compensation under this internal market instrument is presumed not only to have a restorative function, but also to have some deterrent effects. The remedy under the Product Liability Directive is limited to liability for consequential loss to property and physical harm. The requirements for other private law remedies with regard to other types of damages and other tortfeasors are not harmonized and left to the member states. Until now it is unclear how effective the current legal framework is in the prevention of damage by combatting illegal product and to prevent damage from occurring. Because of e-commerce, traditional chains of trade are changing and new economic operators are entering the scene. These changes highlight deficiencies in het current legal framework and raise the question which (legal) interventions are most appropriate, effective and efficient to combat unsafe products.

This line of research builds upon Gitta’s earlier doctrinal research regarding the interaction between European Product Safety Law and standards under private law. It aims to contribute in answering the overarching question of the effects of private law in the prevention of harms from occurring, with a focus on unsafe products. Both B2B- and B2C-relationships are included. What are the driving forces within organizations and companies in the chain that influence the decision of placing an unsafe product on the market or withdrawing, or of recalling a product that has already been placed on the market and turns out to present a risk? And which role does the consumer himself play? Which factors influence his online purchase decisions?

This interdisciplinary, empirical research uses the insights from law and economics and behavioural sciences and is performed in collaboration with social scientists. It aims at testing some of the assumptions that underly legislation and legal decision making, which hopefully contributes to a better assessment of (legal) interventions to reach desired effects and more evidence based private law.