First, the CJEU interpreted Article 13 of the Directive – a provision which states that the regime laid down in the Directive does not affect any rights which an injured person may have under other rules of liability – as meaning that the no fault liability system for defective products does not, in abstract, exclude the possibility for the injured party to bring, in parallel, an action for damages based on the general regime of fault based civil liability, provided that the legal basis is genuinely distinct from the Directive’s concept of “defect” (for example, keeping a product in circulation despite a known defect or failures in pharmacovigilance).
In this respect, the CJEU followed the Opinion of the Advocate General, who also accepted that both regimes may apply where the alleged wrongful act is not confined solely to the lack of safety of the product.
There is, in truth, nothing genuinely new here: the coexistence of the producer’s liability regime with the general regime of civil liability was not seriously in dispute. It is, therefore, merely a confirmation of an understanding already settled in the case law.
The most relevant aspect of the judgment concerns the extinction of rights after ten years and the limitation period.
As regards Article 11 of the Directive – which provides that the rights conferred upon the injured person pursuant to the Directive are extinguished upon the expiry of a period of ten years from the date on which the producer put the product into circulation – the CJEU held that this ten year period is valid and compatible with the right of access to a court enshrined in Article 47 of the Charter of Fundamental Rights.
On this point, the Court did not follow the Opinion of the Advocate General, who had proposed that this period be declared invalid in so far as it may extinguish the rights of victims of progressive diseases who are unable to fully assess the damage within ten years. The CJEU emphasised in this regard that the EU law sought to strike a balance between the protection of injured parties and the need to limit, in temporal terms, the no fault liability system.
In essence, the CJEU underlined the need to ensure a balance between compensation for damage and to safeguard innovation, particularly in a context in which producers are subject to a heavy no fault liability framework. The CJEU nevertheless stressed the possibility for the injured party to avoid the extinction of rights after ten years by bringing proceedings – including declaratory actions – provided that national law lays down effective procedural mechanisms for that purpose. In short, an action brought after that period must be regarded as inadmissible on account of the extinction of the rights conferred by the Directive.
As regards Article 10 of the Directive – which concerns the three year limitation period – the CJEU once more rejected the solution proposed by the Advocate General, namely that this period should start to run only from the “stabilisation” of the damage in cases of progressive disease.
The CJEU made it clear that the limitation period starts to run when the injured party has knowledge, or ought to reasonably have knowledge, cumulatively: (i) of the damage that has definitively become apparent in a clearly identifiable manner in connection with the allegedly defective product, regardless of its subsequent evolution; (ii) of the defect; and (iii) of the identity of the producer. The “stabilisation” criterion is rejected as being indeterminate and likely, in cases of progressive disease, to coincide with the very death of the injured person, which would be incompatible with the requirements of foreseeability and legal certainty which the Directive seeks to guarantee.
