Regulatory problems of production and usage of nanotechnologies from the European case law perspective

Nanotechnologies include materials, systems and devices whose useful properties are determined by their very small size (one nanometer is one billionth meter), or due to a possibility of manipulating the structural elements of some material or substance on a nano level. Despite the fact that lawyers in the West devote much attention to laws regulating nanotechnologies and risks involved in their use, the European law so far has no legal precedents in the sphere of research, production, realization, use and disposal of nano products. However, the future problems based on the claims for damage compensations made against nanotechnologies producers can be predicted on the basis of similar case precedents. The main problem aspect of laws governing nanotechnologies is connected with the fact that it is difficult to establish a cause-and-effect link between the harm and illegal activities of nanotechnology producers (for example, the issue of defective produce) using the classical kinds of proving. Thus, for instance, if a consumer or user of nanotechnologies, which essentially heighten the risk of developing malignant tumors, is diagnosed with cancer, it does not yet mean that the given condition has been caused by the nanotechnologies affecting the human body. At present, even the state-of-the-art medical examination, checks and tests cannot answer the question that is critically important for civil law liability: has the damage been produced by a concrete product or some other outside factors, or by the combination of both? In this respect, the case law of the European Union countries has taken the path of lowering the significance of cause-and-effect connection between the producer's illegal action, expressed in issuing defective produce onto the market, and the harm. Thus, for example, in many cases based on damage caused by asbestos (materials that are similar to nanoproducts in causing harm), European courts in a great number of cases have found sufficient proof of the following fact: a) the presence in the product of harmful properties or defect; b) the presence of harm; c) the fact that the plaintiff has been subjected to the negative influence (that is, he or she was a consumer of the produce or a user of the technology), and d) a possibility from the medical point of view that harm could have been caused by the given negative action. Thus, the proof is sufficient if it only establishes a possibility of causing harm, but does not indicate a concrete cause-and-effect link between the harm and the legal action by the producer, which is, however, one of the main elements of liability according to classical jurisprudence

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