Product Liability 2009 - Arnold & Porter LLP

Chapter 39
Slovakia
Dedák & Partners
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?
Traditionally, the Slovak legal system has distinguished liability for
damage and liability for defects of products, performances and
services. The liability for defects is contractual; the liability for
damage is liability in tort. They can be claimed concurrently and
independently from each other. Both liabilities are basically treated
in the Civil Code (Act No. 40/1964 Coll.); particularities for
business to business relations are specified in the Commercial
Code. Due to implementation of the acquis communautaire, the
liability for damage caused by defective products was introduced by
Act No. 294/1999 Coll. transposing Product Liability Directive
85/374/EEC.
The liability for defects applies to any contractual relation, where
one hands over an asset (e.g. a product) to another against payment.
The handing over guarantees that the asset has the attributes set
forth in the contract or that is usual, that it can be used according to
its nature and the purpose of the contract or in a way agreed upon
and that it is free of legal defects at the moment of the hand over. It
is strict and it cannot be excluded or limited neither by an
agreement nor a unilateral legal act.
The liability for damage is generally fault-based. The Civil Code
provides: “Everyone is liable for damage, which he caused by
violating a legal duty. A person who proves not to have caused the
damage by the fault shall relieve himself of the liability for them.”
(Sec. 420). However, the liability for damage caused by a defective
product is one of the special cases where liability for the damage is
strict. This liability applies only to relations to consumers. It
cannot be limited or excluded in advance. Any agreement to such
effect is null and void.
The liability related to a product can arise also from violation of
statutory or regulatory obligations such as the prohibition to market
dangerous products set out by Act No. 250/2007 Coll. on Consumer
Protection (Consumer Protection Act).
1.2 Does the state operate any schemes of compensation for
particular products?
There is no scheme of special compensation operated by the state in
the Slovak Republic.
ICLG TO: PRODUCT LIABILITY 2009
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Tomáš Kamenec
Miroslava Budinská
1.3 Who bears responsibility for the fault/defect? The
manufacturer, the importer, the distributor, the “retail”
supplier or all of these?
Under the contractual liability for defects any person who is obliged
to provide a thing (goods) or service to another bears responsibility
for defects thereof.
Under the liability for damage caused by a defective product,
responsibility rests on the producer. Liability extends to importers
of the product into the Internal Market and those who present
themselves as producers. Also distributors or other suppliers can be
liable. Act No. 294/1999 Coll. on Liability for damage caused by
defective products (Product Liability Act) makes responsible the
following persons:
a person, who manufactured a product or abstracted it;
a person who presents himself as producer by putting his
name, trade mark or any other distinguishing feature on the
product;
a person importing a product from outside of the EU for the
purpose of sale, hire or any other form of use in the course of
his business; this is without prejudice to the liability of above
mentioned producers; and
any person, who supplies the product unless he informs the
person who suffered a damage of the producer’s identity or
of the identity of person who supplied him with the product;
this applies also to the imported product, if the importer of
the product is unknown even if the foreign producer is
known.
If there are more persons liable concurrently their responsibility is
joint and several.
Within the statutory liability for general product safety, set out by
the Consumer Protection Act, responsible persons are:
a producer/manufacturer, as the professional whose activities
may affect the safety of the product; and
the importer and distributor (seller, supplier), as the persons
placing products on the market not affecting the safety of the
product.
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?
In the field of general safety of products, the market surveillance
authority (the Slovak Trade Inspection, the State Institute for Drug
Control) is authorised to order the producer, distributor, importer
and, if necessary, any other person, to withdraw immediately the
product or series of products from the market or to recall it from
consumers, if it has been proven that it is not safe. Where
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