Product Liability 2009 - Arnold & Porter LLP

Luxembourg
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for the same defective product. In this case, the court is not bound
by the former judgment.
3.5 Can defendants claim that the fault/defect was due to the
actions of a third party and seek a contribution or
indemnity towards any damages payable to the claimant,
either in the same proceedings or in subsequent
proceedings? If it is possible to bring subsequent
proceedings is there a time limit on commencing such
proceedings?
As previously mentioned (see the answer to question 3.1), the
Defective Products Act does not allow the producer to reduce his
liability if the damage is due to the fault of a third party and to the
default of the product.
Where the liability is sought on the basis of article 1384, first indent
of the LCC, the fault of a third party may exonerate the defending
party from its liability if the said fault presents the characters of
force majeure.
In any case, the defendant can claim that the fault/defect was due to
the actions of a third party and seek a contribution or indemnity
towards any damages payable to the claimant, either in the same
proceedings or in subsequent proceedings.
3.6 Can defendants allege that the claimant’s actions caused
or contributed towards the damage?
See the answer to question 3.1.
4 Procedure
4.1 In the case of court proceedings is the trial by a judge or a
jury?
In Luxembourg, there is no jury in civil and commercial matters.
Depending on the value of the claim brought before the court, the
case will be submitted for hearing before either one judge (juge de
paix) or three judges (tribunal d’arrondissement).
4.2 Does the court have power to appoint technical specialists
to sit with the judge and assess the evidence presented by
the parties (i.e. expert assessors)?
The New Code of Civil Procedure (NCPC) does not allow a court
to appoint an expert or technical specialist to sit with the judge
(expert assessors). However, Luxembourg courts are entitled to
appoint an expert in matters for which technical advice is required.
4.3 Is there a specific group or class action procedure for
multiple claims? If so, please outline this. Is the
procedure ‘opt-in’ or ‘opt-out’? Who can bring such
claims e.g. individuals and/or groups? Are such claims
commonly brought?
A class action procedure is not permitted under Luxembourg law.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
A consumer organisation is not entitled to start legal proceedings
for the damages suffered by its members. Each consumer must file
his own claim against the manufacturer and/or the seller.
However, a consumer organisation may initiate an action for its own
personal damage suffered or for the injury caused to the collective
interest (intérêt collectif) defended by the said organisation.
A consumer organisation may also initiate actions before the
President of the District Court to obtain the cessation of practices
infringing the provisions of the act dated 21 April 2004 on the
conformity guarantee due by the seller of moveable property.
4.5 How long does it normally take to get to trial?
The Justice de paix has jurisdiction for civil and commercial
matters not exceeding EUR 10,000. It can take three months to one
year to obtain a court decision.
For matters exceeding EUR 10,000, the proceedings before the
District Court (Tribunal d’Arrondissement) generally last between
one to four years. The duration of the procedure depends largely on
the complexity of the case, the diligence of the lawyers instructing
the case, the potential appointment of experts and witness hearings.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
The courts can rule upon the question of jurisdiction as well as any
procedural issues and judgments can be appealed before the Court
of Appeal.
In a preliminary judgment (jugement avant dire droit), a court may
order a witness hearing, the appointment of an expert, or a third
party to provide evidence. This judgment does not rule on the
merits of the case and thus cannot be appealed without the decision
rendered on the merits.
4.7 What appeal options are available?
Pursuant to article 2 of the NCPC, the decision of the Justice de
paix cannot be appealed where the amount of the claim does not
exceed EUR 2,000.
Except in case of a jugement avant dire droit (see the answer to
question 4.6), a party may appeal a court decision. The appeal must
be lodged within forty days of the service of the decision, before the
District Court (for claims under EUR 10,000) or before the Court of
Appeal (for claims above EUR 10,000). On appeal, both matters of
fact and matters of law are judged.
Finally, a party may lodge proceedings before the Luxembourg
Supreme Court (Cour de cassation) within a period of two months
of the service of the decision. The Supreme Court does not rule on
matters of fact but only on matters of law.
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
As previously mentioned (see the answers to questions 4.2 and 4.6), a
court may appoint an expert for technical advice. Pursuant to article
446 of the NCPC, courts are not bound by the expert’s advice. The
expert is not entitled to give an opinion on the merits of the claim.
Each party may also appoint its own expert. According to
Luxembourg case law, a court may only rely on a unilateral report
provided that the report had been duly communicated to the other
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