The Opinion by Advocate General Mengozzi in Centre hospitalier universitaire de Besançon (case C-495/10) concerns the scope of the Product Liability Directive and the possibility for Member States to set rules on the liability of service providers for defective products used. It concerns a French case dealing with the damages of a thirteen year-old boy, who suffered burns during surgery in a French hospital as a result of a defective heated mattress.
According to the highest administrative court of France, the Conseil d’État, public health providers are strictly liable for damages caused to patients as a consequence of defective devices and products. According to the Conseil d’État, this liability rule follows from French administrative law rather than the legislation implementing the Product Liability Directive. In this case before the ECJ, this strict liability rule for public health providers is questioned, as it is argued that it is in breach of the Product Liability Directive.
Advocate General Mengozzi points out that in order for the rule to be in breach of the Directive, it must fall under its scope. He points out that this can only be the case if :
(a) the public health provider could be seen as supplier in the sense of Article 3(3) of the Directive, or
(b) if the liability rules for producers and other parties covered by the Directive preclude liability of others.
According to the Advocate General, neither is the case.
As to (a), the Mengozzi argues that a public health provider can not be seen as a supplier under the Directive. As a main rule, the Directive holds liable the producer of the product, i.e. the actual manufacturer. If the producer can not be identified, other parties may be liable instead. One of these parties is what the Directive refers to as the “supplier” of the product. But this term does not include the service provider, i.e. a party who uses a (defective) product while providing a service to a consumer. Rather, it refers to the other parties in the chain of distribution of the product, with the last seller being the last party in the chain. This is not surprising, as the Directive deals with manufacturer’s liability rather than user’s liability, even though the manufacturer’s liability is extended to other parties in the distribution chain if the actual manufacturer can not be identified.
The answer to (b) is somewhat more complex. As the Directive determines the liability of some parties but not of others, it could be argued that the Directive precludes liability of those other parties. So the reasoning would be that because the manufacturer and, under circumstances, later suppliers can be held liable, Member States can not make other parties liable. Mengozzi argues differently. The most important argument given on this point is that issues that are not explicitly dealt with under the Directive, do not fall under its scope. As a consequence, Member States have the freedom to design and apply their own rules, including e.g. the French rule holding public health care providers liable for damages as a result of the use of defective equipment. This makes sense: the Product Liability Directive does not govern all aspects of liability of defective products, leaving the topics left untouched open for regulation by Member States.
The Advocate General adds that if the Court decides differently on the question of scope, i.e. if it would decide that a service provider’s liability would fall under the scope of the Directive, this would breach Article 13 of the Directive. However, it seems likely that the Court follows the Advocate General on the question of scope, thus leaving the French liability rule untouched.
Click here for the opinion.