Product Liability 2009 - Arnold & Porter LLP

Luxembourg
212
Allen & Overy Luxembourg Luxembourg
as agreed upon by the parties in accordance with the sale agreement.
In addition, the seller is liable for any material defects.
No guarantee is due where the purchaser could not ignore the
material defect at the moment of delivery.
1.2 Does the state operate any schemes of compensation for
particular products?
The Grand-Duchy of Luxembourg (Luxembourg) has not created
compensation schemes for particular products.
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
I. Legislation on defective products
Under the Defective Products Act, the manufacturer, the producer
and, in the case of products manufactured outside of the European
Union, the importer, may be liable for damages caused by the
defects of their products. Any person that presents itself as the
producer or the manufacturer of the product, e.g. by affixing its
name, trademark or another distinctive sign on the product, may be
regarded as the product’s producer or manufacturer.
II. Contractual liability
The manufacturer or the seller of the defective product are generally
liable vis-à-vis the injured party.
III. Tort liability
1. The manufacturer of the product may be liable on the basis of tort
liability.
2. Pursuant to article 1384, first indent of the LCC, the holder of the
defective product that caused the injury is presumed to be liable.
The holder can be the manufacturer, the seller or the owner of the
product.
IV. Specific legislation on sale agreements concluded by
consumers
The seller may be liable.
1.4 In what circumstances is there an obligation to recall
products, and in what way may a claim for failure to recall
be brought?
Under the Act dated 31 July 2006 relating to General Product
Safety, as amended (the General Product Safety Act)
implementing Council Directive 2001/95/EC, producers have the
obligation to ensure that they put only safe products on the market.
The General Product Safety Act applies if no specific provisions
exist governing the safety of the products concerned.
According to article 6 of the General Product Safety Act, the Minister
of Economy can (i) order the withdrawal of dangerous products
already placed on the market and (ii) order, coordinate or organise,
with the cooperation of the producer and the distributor if needed, the
recall of dangerous products already supplied to consumers.
1.5 Do criminal sanctions apply to the supply of defective
products?
The General Product Safety Act sets forth criminal sanctions
against producers who market products for which they know or
should have known did not meet the safety standards imposed by
Luxembourg legislation, including fines between EUR 251 and
EUR 25,000.
In the event of non compliance with the decisions taken by the
Ministry of Economy, producers and distributors may be sentenced
to imprisonment for a period of between eight days to one year and
imposed fines of between EUR 251 and EUR 125,000.
Furthermore, this act imposes fines between EUR 25 and EUR 250
for distributors who put into circulation products that are not safe.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
I. Legislation on defective products
Pursuant to article 3 of the Defective Products Act, the victim must
prove the defect, the damage as well as the causal link between the
defect and the damage.
II. Contractual liability
The purchaser must demonstrate that the seller failed to
deliver products in conformity with the contractual
specifications.
The seller will also be liable towards the purchaser in case of
failure to respect its information and security duties.
In case of an action based on hidden defects, the purchaser
must prove that the defect (i) existed before the sale, and was
hidden at the time of the sale and (ii) is sufficiently serious.
III. Tort liability
(i) Articles 1382 and 1383 of the LCC:
The victim must prove the fault, the damage and the causal link
between the fault and the damage.
(ii) Article 1384, first indent of the LCC:
The victim is not required to prove that the product was defective,
but that the product had an active role in the occurrence of the
damage.
IV. Specific legislation on sale agreements concluded by
consumers
The purchaser must prove that the seller failed to deliver the goods
in conformity with the terms of the sale agreement.
2.2 What test is applied for proof of causation? Is it enough
for the claimant to show that the defendant wrongly
exposed the claimant to an increased risk of a type of
injury known to be associated with the product, even if it
cannot be proved by the claimant that the injury would
not have arisen without such exposure?
Luxembourg courts generally retain the theory of adequate
causation (théorie de la causalité adéquate). This theory attempts
to link the damage to the past event that was normally likely to
cause it, unlike other events preceding the damage that would only
have caused it under exceptional circumstances. In other words, a
fault preceding the occurrence of a damage is in causal link with the
damage if according to general life experience, such a fault would
normally give rise to such a damage.
2.3 What is the legal position if it cannot be established which
of several possible producers manufactured the defective
product? Does any form of market-share liability apply?
I. Legislation on defective products
According to article 2 of the Defective Products Act, the supplier of
the defective product may be liable where the producer of the said
product cannot be identified.
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