The Product Liability Directive lays down common rules governing liability for defective products in the European Union. It imposes strict liability on the producer of a defective product for damage caused by the defect. A product is defective if it does not provide the safety that consumers generally are entitled to expect taking account of all of the circumstances, including the product's get up and presentation and its expected use.
A person who has suffered damages as a consequence of a defective product that has been placed on the market has the right to sue the producer within a period of 10 years. Such person's right would however be extinguished if the injured person fails to advance his claim10 years after the product was put into circulation.
A recent ruling of the European Court of Justice gave insight into the application of the 10-year deadline for claims related to defective products. The case arose after an individual named OB bought one of the vaccines produced by a French company Aventis Pasteur SA, which produces pharmaceutical products from a distributor in the UK and suffered severe brain damage subsequent to the administration of a unit of the vaccine at issue.
OB brought an action for damages within the 10-year period against the UK distributor of the product (Mérieux UK Ltd), but he made a mistake about the name of the manufacturer of the vaccine. When he made a second attempt to sue Aventis, the 10-year window for bringing action against the producer had already expired.
The House of Lords, before which the case was pending, referred the matter to the European Court of Justice, requesting a ruling on the extent of producers' liability for defective products in a context where the complainant had made a mistake in the "classification of producer" in situations where the legally prescribed "limitation period" for a substitution claim had expired.
In its ruling the European Court of Justice made it clear that it is up to national procedural law to determine the conditions in accordance with which one party may be substituted for another in the context of such an action.
Although the limitation period is strict, claimants in defective products cases could be allowed to substitute defendants if there has been a mistake as to the appropriate party to sue, even where the 10-year limitation period set out in the product liability directive has expired.
In particular, the Luxembourg judges said, it should be possible to substitute the producer for a wholly-owned subsidiary if that producer determined the putting into circulation of the product in question.
Moreover, where the person injured by an allegedly defective product was not reasonably able to identify the producer of that product before exercising his rights against the supplier of that product, that supplier must be treated as a "producer", if it did not inform the injured person, on its own initiative and promptly, of the identity of the producer or its own supplier. Therefore, where information on the identity of the producer is not forthcoming from the supplier, the injured person can sue directly the supplier for damages, who will have the same liability as the producer in such cases.
Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.