Product Liability 2009 - Arnold & Porter LLP

Chapter 17
Denmark
Kromann Reumert
1 Liability Systems
1.1 What systems of product liability are available (i.e. liability
in respect of damage to persons or property resulting from
the supply of products found to be defective or faulty)? Is
liability fault based, or strict, or both? Does contractual
liability play any role? Can liability be imposed for breach
of statutory obligations e.g. consumer fraud statutes?
Directive 85/374 on liability for defective products was
implemented into Danish law by Act no. 371 of 7 June 1989
concerning product liability and amended by Act no. 1041 of 28
November 2000 implementing Directive 1999/34. The Act was
amended again in 2006 after the European Court of Justice
overturned section 10 of the Act in case no. C-402/03 and again in
2007 in order (to a limited extent) to accommodate the new Time
Limit Act that took retroactive effect on 1 January 2008.
The Product Liability Act applies to personal injury and damage to
consumer goods.
The producer’s liability for defective products was based on the
principles of the Law of Tort until the Product Liability Directive
was implemented into Danish law. In Denmark the Law of Tort is
not set out in any Act, but has been developed over the years by the
courts. The Act is a supplement to existing Danish law on product
liability and not a replacement. Product liability has generally been
defined as a producer’s liability for damage caused by a defect in
his product. According to the ordinary rules of Danish law on
product liability, it is a condition for liability that the defect in the
product is due to negligence on the part of the producer. The burden
of proving negligence is not onerous.
The Danish Sale of Goods Act of 1906 (købeloven) with later
amendments governs the obligations between purchaser and vendor
in sales of goods. The Act does not govern the right to
compensation for damage caused by the product. The Sale of
Goods Act governs damage to the actual product sold, including
any damage or problems with its ingredients, as these types of
damage are not considered to be product damage.
It should be noted that Denmark has implemented the Convention
on Contracts for the International Sale of Goods (CISG).
The main difference between contract law and tort in relation to
product liability is the limitation period for bringing claims.
According to the Sale of Goods Act the limitation period is two
years from delivery of the goods.
Although product liability is not governed by the Sale of Goods Act
of 1906, the existence of a contract between the parties can be of
relevance. If the contract is entered into between professionals it
may regulate, limit or eliminate product liability. The contract may
ICLG TO: PRODUCT LIABILITY 2009
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Jens Rostock-Jensen
Peter Smith
state certain obligations of the professional purchaser to check the
product. Danish courts will not accept limitation of liability for
product damage in case of personal injury and, as a main rule,
limitation of liability will not be accepted if the seller has shown
gross negligence. Danish courts tend to be critical in their
interpretation of limitation on liability using the in dubio contra
stipulatorem rule of interpretation.
Under the Product Liability Act it is not possible to limit or
eliminate product liability.
1.2 Does the state operate any schemes of compensation for
particular products?
Patients who suffer damage from drugs may claim damages from the
Government according to the Act on Damage from Use of Drugs. The
Act gives the Government the right of recourse against the producer
according to product liability rules, cf. section 16, subsection 1.
Existing acts on liability for nuclear plants, vaccine damage and
damage occurring during military service, deal with product
liability in these specific areas.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
According to ordinary Danish rules on product liability the
producer bears responsibility for the fault/defect.
According to the Product Liability Act, the producer, as defined in
the directive art. 3, bears responsibility for the defect.
Since the 1930s it has been held that the supplier is immediately
liable for defects in the product delivered by the producer even
though the supplier has not acted negligently himself (the supplier
then has a right of recourse against the producer). This found its
way into the original section 10 of the Danish Product Liability Act
according to which the supplier was immediately liable to the
claimant and any other suppliers in the chain of distribution for any
product liability incurred by the producer, also in case of personal
injury or damage to non-commercial goods regardless of whether
the supplier had acted negligently.
However, on 10 January 2006 the European Court of Justice ruled
that Section 10 of the Danish Product Liability Act could not be
upheld, cf. the European Court of Justice case C-402/03.
The judgment was in line with the conclusion of the French case C-
52/00. A national rule according to which the supplier is
answerable without restriction for the producer’s no-fault-based
liability is therefore no longer possible.
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