By judgment of 21 December 2011 (court file no. C-495/10), the ECJ decided that the Council Directive 85/374/EEC is not applicable to servicers. A national provision, which provides for the servicer's liability for damages incurred by his usage of defective products in the scope of his services, regardless of culpability, is legally possible in addition to the producer's liability in accordance with the aforementioned directive. However the parties must still have the opportunity to pursue their claims against the producer.
The decision is based on the following facts and circumstances:
Plaintiff suffered burnings during a surgery in the university hospital Besançon (CHU Besançon), caused by a defective temperature control system on the heated mattress, on which he was placed. The CHU Besançon was sentenced by French courts to pay damages in an extent of 9,000 euros to the injured person and 5,974.99 euros to the Caisse Primaire d'assurance maladie du Jura. Under French law the liability of public health care facilities towards its patients is based mainly on a principal of case law established by the Conseil d'État, whereas a public health care facility must compensate damages suffered by the patient as a consequence of the defectiveness of a device or equipment used during the surgery, even in the absence of its own fault.
The judgment rendered by the French court was appealed by the CHU Besançon due to its opinion that in accordance with the Directive concerning liability for defective products 85/374/EEC, only the producer of the mattress can be held liable, since he could be duly identified. The Conseil d'État brought its questions on the interpretation of the directive in front of the ECJ. It asked, whether the French provision on the liability of public health care facilities, regardless of culpability, can be existent and applicable in addition to the aforementioned directive. In accordance with the Directive concerning liability for defective products, the producer is liable for damages, regardless of culpability, which are caused by defects of his product. If the producer cannot be identified, the supplier is liable. This does not apply, if the supplier can name the producer or his pre-supplier within an appropriate time. If products are imported into the EU, the importer is liable instead of the producer. Article 13 of the Directive provides that claims that an injured person has, based on provisions on contractual or non-contractual liability or based on another liability provision in force at the time of the publication of this directive, shall not be affected.
The ECJ confirmed the admissibility of the French provision. The Directive concerning liability for defective products governs only the producer's liability or possibly the importer's or supplier's liability for defective products. However the directive shall not harmonize the liability for defective products exceeding its actual scope of applicability. A possible user's liability (such as the CHU Besançon), incurred while using a previously acquired product or device such as a heated mattress during a surgery of a patient, lies outside the scope of the Directive, since such a user can neither be regarded as producer or party to the manufacturing or distribution chain of the product nor as supplier of the product.
Moreover, the mere fact that in addition to the producer's liability under the established directive, a national law exists under which the servicer can be held liable, regardless of culpability, can neither infringe the applicability of such provision on the producer's liability nor interfere with the objectives followed by the legislative body.
The ECJ underlines the fact that the practical effect of the directive must be preserved. Therefore the party's opportunity to call on the producer's liability on the basis of the directive must remain untouched. This is the case in French law due to the warranty claims given thereunder. The ECJ finally pointed out that the servicer's possible liability, regardless of culpability, which might arise in addition to the producer's liability under the directive, contributes to the strengthening of consumer protection.
Contact Person: Damian Wypior, Esq.,
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