This paper argues that in certain circumstances public authorities should be liable for regulating nanotechnology. Nanotechnology is an emerging field of technology that enables to control shape and size of various structures, devices and systems at nanometer scale on which one nanometer is equal to one-billionth of a meter. In spite of being a nascent field of science and technology, its scope of application – in the food, pharmaceuticals, cosmetics, construction, textile, electronics, and agricultural industries – is expanding rapidly. The risks associated to nanotechnology, however, and its long-term consequences are still largely unknown, particularly in regards to its health and safety impacts on individuals. In this context of uncertainty and ambiguity surrounding this emerging technology, it is highly problematic that the current legal liability framework in the European Union for defective products under Product Liability Directive (85/374/EEC), and the public authority liability for damage caused by EU institutions or by its servants in the performance of their duties under Article 340 (2) TFEU – fails to effectively protect users of nanotechnology. Thus, it is imperative to ensure an adequate legal response in order to protect users of nanotechnology. This piece proposes a regulatory framework that will enable users to claim compensation from public authorities in cases of incomplete or insufficient regulations in regards to nanotechnology. The proposed liability scheme is based on (a) public authority liability as a secondary claim; (b) the infringement of objective precautionary principles; (c) whereby the burden of proof rests on the public authority; and (d) the limitation period for a claim for damages starts from the time of knowledge about the cause of damage. Finally, this paper concludes by recommending the implementation of additional solutions to safeguard the protection of the users of nanoproducts. These include creating an innovation fund for companies to share their profits with public authorities; governmental research subsidies and programmes financed from public funds; and consumer awareness and education campaigns about risks related to nanotechnology
Nina Natalia Baranowska, "Public Authority Liability and the Regulation of Nanotechnology: A European Perspective" (2018) 16:1 CJLT.