Product Liability 2009 - Arnold & Porter LLP

Spain
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the Consumer’s Act). He may, however, escape liability by
designating, within three months from the time he is notified of the
victim’s claim, his own supplier or the manufacturer.
The distributor or retail supplier who compensated the consumer
can still sue the producer, under the same rules as if he had been the
victim, if he commences this action within one year of having paid
the damages to the injured party.
Under contractual liability, because there are implied guarantees
and obligations which bind the distributor and/or the retail supplier,
these parties may often be held liable for the defect of a product
(e.g., on the grounds of the guarantees against hidden defects, see
question 1.1 above).
Under Article 1902 of the Spanish Civil Code, any party in the
distribution chain may potentially be held liable if he has incurred
in wilful misconduct or negligence.
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?
Directive 2001/95/EC of 3 December 2001 on General Product
Safety (hereinafter “GPSD”), which is aimed at protecting
consumers from products that would not meet safety standards, was
implemented into Spanish law by Royal Decree 1801/2003 dated 26
December 2003 (“RD 1801/2003”). In order to ensure this
protection, national authorities have been granted additional powers
and further obligations have been imposed on the manufacturers
and distributors.
Follow-up and recall obligations
Under the general principle of consumer safety all products sold in
Spain must, when used under normal conditions or under abnormal
conditions which are reasonably foreseeable by a professional,
present the level of safety which one may legitimately expect and
not endanger the health of persons.
The person responsible for putting a product on the market has a
duty to take the necessary measures to be kept informed of any risk
that his or her product may create and, where necessary, to
withdraw and recall any product that may endanger the consumers
(Article 4 of the RD 1801/2003).
Given that producers and distributors are under an obligation to act
diligently and may not supply products which they as professionals
knew (or should have known) did not meet the required standards,
a failure to recall a defective product constitutes a fault, which may
give rise to an action for compensation, should the other conditions
of liability be fulfilled.
Notification obligation
Producers and distributors are obliged to immediately notify the
competent authorities of the Comunidades Autónomas if they
discover that their product is dangerous (Article 6 of the RD
1801/2003). The failure to notify the authorities will not give rise
per se to a sanction, but it will be taken into account in any civil,
administrative or criminal proceedings concerning the product.
Due to the existence of the EU Rapid Information System
(“RAPEX”), the notification to one Member State of a defect or
danger automatically leads to the notification of all Member States
if the product has been marketed in other EU Member States.
1.5 Do criminal sanctions apply to the supply of defective
products?
The harmful effects of a product may constitute grounds for
criminal sanctions. The action may be brought by the public
prosecutor on his own initiative or following from a complaint filed
by a victim. The prosecutions in matters of product liability may be
based upon the alleged criminal conduct of the manufacturer,
distributor and/or seller (for example, in the manufacturer knew that
the product was potentially harmful but nevertheless decided to
market it). In addition to the criminal conviction of the guilty party,
the victim may obtain civil damages from such party before the
criminal court.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
The burden of the proof generally falls on the claimant (Article 217
of the Spanish Code of Civil Procedure). Pursuant to this principle,
an injured party must prove that the supplier of a product is at fault,
that he has suffered a legally recognised injury and that there is a
causal link between the fault of the supplier and the damage
suffered.
In strict liability cases, the injured party will have to prove the
defect, the damage and the causal link between the defect and the
damage suffered.
However, Article 217.6 of the Spanish Civil Procedure introduces
the principle that the burden of proof must take into account the
proving availability and easiness. Therefore, if the defect and the
damage are proved, courts will tend to establish the presumption
that the defect existed. As a consequence, the defendant will have
to prove wrong the presumption. It is therefore advisable for
manufacturers to carry on tests (e.g. expert’s reports) that are not
usually in the consumer’s reach.
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?
The same principle relating to the existence of a causal link applies
in the different liability systems. As a general rule, the damage
must be the immediate and direct result of the supplier’s breach.
Whether there is a direct causal relationship will be determined on
a case-by-case basis by the trial courts based on two principal
theories of causation. The first, called the theory of “equivalent
conditions”, provides that an act or omission will be deemed to be
the proximate cause of the damage, if such damage would not have
occurred in its absence. The second theory, known as the theory of
“adequate causality”, provides that an act or omission will be
deemed to be the proximate cause of the damage if, “given the
normal course of events”, this act or omission made it probable that
the damage would occur.
Spanish courts have generally rejected the risk theory; however, in
cases where the claimant has proved the defect and the damage they
have accepted as a presumption that a causal link exists, thus
inverting the burden of proof to the defendant, who will have to
prove that it does not exist.
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?
In principle, there is no market-share liability in Spain.
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ICLG TO: PRODUCT LIABILITY 2009
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