Product Liability 2009 - Arnold & Porter LLP

Albania
58
Tonucci & Partners Albania
importing, storing or selling foods, drinks and other substances, or
medicine which are dangerous or harmful to life or health, as well
as introducing chemicals, materials or additive substances into the
production and processing of food and drinks, when those acts have
led to death or serious harm to the health of an individual, is
punishable by up to ten years’ imprisonment. When the act has
caused death or serious harm to the health of more than one person,
it is punishable by no less than five years’ imprisonment.
Besides, Article 288/a of the Albanian Criminal Code provides that
illegal production of industrial and food items and goods constitutes
criminal contravention and is punished by a fine or up to two years’
imprisonment. The same offense, if committed in collusion with
others, or repeatedly, or if it has caused serious consequences, is
punished by three to ten years’ imprisonment.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
Pursuant to Article 12 of the Albanian Civil Procedure Code, the
party which claims a right has the burden to prove, in conformity
with the law, the facts on which it supports its claim.
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?
According to Article 609 of the ACC, the damage must be an
immediate and direct consequence of a person’s faulty actions or
omissions. If a person who has the legal obligation to avoid a
certain event does not taken action to avoid it, he is liable for the
damages caused as a consequence of it.
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?
There are no specific provisions under the Albanian legislation
regulating the above scenario. According to Article 6 of Law no.
9902, any producer is responsible for defect/s of goods produced by
him. According to Article 633 of the ACC, in the case that several
persons are responsible for the damage caused (always concerning
responsibility of products), each of them is responsible for the
totality of the damage. Hence, according to Article 626 of the ACC:
“When damage is caused by many persons together, they are jointly
and severally liable to the damaged person.”
On the other hand, Article 627 of the ACC provides that the person
who has compensated the damage has the right to require from each
of the other persons responsible for the damage his share of the
damage, proportionally with the measure of the responsibility of
each person and of the consequences deriving from it.
2.4 Does a failure to warn give rise to liability and, if so, in
what circumstances? What information, advice and
warnings are taken into account: only information provided
directly to the injured party, or also information supplied to
an intermediary in the chain of supply between the
manufacturer and consumer? Does it make any difference
to the answer if the product can only be obtained through
the intermediary who owes a separate obligation to assess
the suitability of the product for the particular consumer,
e.g. a surgeon using a temporary or permanent medical
device, a doctor prescribing a medicine or a pharmacist
recommending a medicine? Is there any principle of
“learned intermediary” under your law pursuant to which
the supply of information to the learned intermediary
discharges the duty owed by the manufacturer to the
ultimate consumer to make available appropriate product
information?
Under Law no. 9902, the obligation of the producer to inform the
consumers with regard to a product is expressly provided.
Information on the use and specifics of the product must be clear.
On the other hand, Article 6 of Law no. 9779 provides that the
producer shall give to the consumer all respective data and
information in order to provide him with the possibility to evaluate
the possible eventual risks that the product may cause. Hereupon,
the consumer shall be aware of the danger the product may
cause/hold. If the above information/warning is absent, the
producer is liable and he might be subject to a fine amounting to
ALL 6,000,000.
According to Article 631 of the ACC a producer means any person
who imports a product for purposes of sale, lease, or another form
of distribution, pursuant to his trade activity. The persons acting in
any of the above situations are equally liable as the producer,
including with regards to the duty of information. Moreover,
according to Article 632 of the ACC, when the producer of a certain
product cannot be identified, any supplier of such products will be
considered a producer, except in situations when the supplier
notifies the damaged person of the producer’s identity or the
identity of the person who has supplied the product, within a
reasonable time limit.
Under the Albanian legislation, the responsibility of the producer is
separate from the responsibility of any “learned intermediary”
performing commercial actions with regard to the same product.
Therefore, the responsibility of a supplier under a duty of
information obligation does not discharge the producer from the
same obligation and responsibility.
3 Defences and Estoppel
3.1 What defences, if any, are available?
The manufacturer has several defences at his disposal. According
to Article 628 of the ACC, the manufacturer is not liable in the
following cases: a) the producer has not supplied the product; b) the
fault/defect was not present at the time when the product has been
supplied; c) the product has not been manufactured for sale or any
other form of distribution, with the intent of generating profits for
the manufacturer, nor has it been manufactured or supplied in the
framework of company or professional activity; d) the defect is a
result of compliance with regulations imposed by public authorities;
e) the defect was not discoverable given the state of scientific and
technical knowledge at the time of supply; or f) it concerns raw
materials or components of another product and the defect
manifests during the formation of that product, or as a result of the
incorrect instructions from the manufacturer of that product.
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