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The Lack of Medical Research Does Not Prevent an Injured Person from Proving the Defect of a Product and the Causal Link between the Defect and the Damage
Published online by Cambridge University Press: 09 November 2017
Abstract
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- Type
- Case Commentaries
- Information
- European Journal of Risk Regulation , Volume 8 , Special Issue 4: Special Issue on the EU Public-Health-Security Nexus , December 2017 , pp. 798 - 803
- Copyright
- © Cambridge University Press
Footnotes
*
PhD candidate, University of Geneva; e-mail: [email protected].
References
1 Case C-621/15 W and Others EU:C:2017:484.
2 ibid para 11.
3 Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the liability for defective products, OJ L210, of 7 August 1985, pp 29–33 (Product Liability Directive).
4 W and Others, supra note 1, paras 19–25.
5 The French Civil Code establishes that “the producer shall be liable for the damage caused by a defect in his product, whether or not he is bound to the victim by contract” and that “the plaintiff is required to prove the damage, the defect and the causal relationship between defect and damage” (Art 1386 Civil Code). This has been interpreted by the Cour de cassation as meaning that “proof of a causal link between the defect in the product and the damage suffered by the person injured can be derived from serious, specific and consistent presumptions” (W and Others, supra note 1, para 12).
6 W and Others, supra note 1, para 28.
7 ibid.
8 ibid para 29.
9 ibid para 30.
10 ibid para 31.
11 ibid para 34.
12 ibid paras 35–36.
13 ibid para 41.
14 ibid paras 52–53.
15 ibid para 54.
16 Howells, G, ‘ECJ 10 May 2001, Henning Veed fald v. Arhus Amtskonnune, C-203/99 (Danish product liability kidney case)’ (2002) 6 European Review of Private Law 847, 848 Google Scholar; Smith, DG, ‘The European Community Directive on Product Liability: A Comparative Study of its Implementation in the UK, France and West Germany’ (1990) 17 Legal Issues of Economic Integration 101, 128–130 Google Scholar.
17 Ueffing, M, ‘Directive 85/374 – European Victory or Defective Product Itself?’ (2013) 4 MaRBLE Research Papers 373, 376-378 Google Scholar;
Smith, ‘The European Community Directive on product Liability’, supra note 16, 106–107.
18 Fairgrieve, D, Howells, G and Pilgerstorfer, M, ‘The Product Liability Directive: Time to get Soft?’ (2013) 4(1) Journal of European Tort Law 1, 17–18 Google Scholar.
19 Most recently, European Commission, Fourth report on the application of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability or defective products amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999, COM(2011) 547 final. The fifth report is to be published in 2017.
20 Case C-293/91 Commission v France [1993] EU:C:1993:4; Case C-300/95 Commission v United Kingdom [1997] EU:C:1997:255; Case C-52/00 Commission v France [2002] EU:C:2002:252; Case C-154/00 Commission v Greece [2002] EU:C:2002:254; Case C-177/04 Commission v France [2006] EU:C:2006:173; Case C-327/05 Commission v Denmark [2007] EU:C:2007:409.
21 There have been 18 judgments in total since the adoption of the Product Liability Directive, in 1985, amongst which six are the result of an action for failure to fulfil obligations under TFEU, Art 260.
22 See, in this sense, Van Leewen, B and Berbruggen, P, ‘Resuscitating EU Product Liability Law? Contemplating the Effects of Boston Scientific Meizintechnik GmbH v. AOK Sachsen-Anhalt and Bietriebskrankenkasse RWE (Joined Cases C-503/13 and C-504/13)’ (2015) 5 European Review of Private Law 899 Google Scholar.
23 COM(2011) 547 final, 7–8.
24 ibid 7.
25 ibid.
26 ‘ECJ Lowers Evidence Standard in Vaccine-Liability Case’ (vbb.com, 26 June 2017), available online at <www.vbb.com/insights/corporate-commercial/corporate-commercial/ecj-lowers-evidence-standard-in-vaccine-liability-case> (accessed 18 August 2017).
27 Opinion of AG Bobek in W and Others [2017] EU:C:2017:176, para 23.
28 W and Others, supra note 1, para 31.
29 ibid para 41.
30 This relates to the distinction between interpretation and application as illustrated by Craig, P and de Búrca, G, EU Law: Text, Cases, and Materials, 6th edn (Oxford, Oxford University Press, 2015) 496–497 Google Scholar; see also Tridimas, T, ‘Constitutional Review of Member State Action: The Virtues and Vices of an Incomplete Jurisdiction’ (2011) 9 International Journal of Constitutional Law 737 Google Scholar.