The importer of a product into any member state of the European Union may also be considered as a producer under the said directive.2 However, where the producer cannot be known or identified, the supplier of such a product is treated under the directive as the producer unless the identity of the producer or the one supplying the product can be identified by him.3
In the case at bar, if the buyer would identify specifically the manufacturer of Aquawash-09 in Korea, such manufacturer may be made liable under the directive. If not, the importer of such washing machine, specifically, Heinz which is a German Company, can be made liable under the EC directive. The buyer can therefore claim against the manufacturer, the supplier or both under the EC directive.
Furthermore, under the EC directive, a defect in a product exists if the so-called objective test is established which includes “either or both the cost-risk analysis and the consumer’s expectation of safety.”4 A product is considered as defective under the EC directive if such product does not make available the safety which any person could “reasonably entitled to expect,” taking into account the following: “the presentation of the product, the use to which the product could reasonably be expected to be put, and the time when the product was put into circulation.”5 Defect may also be present in the design or the manufacturing of the product, in the failure to warn, in the instructions, and in the “developmental defects.”6 If then the product does not provide the level of safety which is expected by the consumer, it would then be considered as defective under the directive even though it functions under the designed specification.7
In the case at bar, the washing machine then may certainly be considered as defective not only because it did not function properly but because it does not provide for the level of safety reasonably expected from the product, as