Product Liability 2009 - Arnold & Porter LLP

Thelius Belgium
1.5 Do criminal sanctions apply to the supply of defective
products?
As explained earlier (see question 1.1 D), the seller of defective
products is punishable of criminal sanctions.
The Criminal Code organises sanctions towards the seller who has
deceived the buyer in respect of the quality, quantity or origin of the
products.
The Criminal Code (articles 418 to 420) also organises sanctions
towards the person liable for involuntary homicide or the infliction
of involuntary bodily injuries.
Finally, the law dated February 9, 1994 on products and services
safety also provides criminal sanctions towards the persons who
market products for which they know or should have known on the
basis of European or Belgian regulations that they did not present
the safety imposed by the regulation.
In addition to fines, the judge may order the confiscation of the
illicit benefits carried out with the favour of the infringement, and
order, to the expense of the contravener, the advertisement or
publication (during a determined delay) of the judgment of its
summary, in the press or by any other media.
2 Causation
2.1 Who has the burden of proving fault/defect and damage?
Each party has the burden of proof as regards the facts alleged
(article 870 of the Judicial Code).
Article 7 of the Product Liability Act confirms: “the burden of proof
of the defect, the damage and the causal link between the defect and
the damage belongs to the injured person”.
There is no exception to this principle neither in tort liability nor in
criminal liability.
As regards contractual liability, the buyer availing himself of a
latent defect in the product must prove not only the latent defect, but
also establish that this defect existed when he bought the product.
However, the case law gives some support to the person who buys
a product to a professional seller. In this case, the Supreme Court
has decided that the professional seller is obliged to the full
compensation of the buyer’s damage if the existence of the defect is
established unless the seller demonstrates that the defect could not
be detected. This case law is strict: the circumstance that the defect
could not be detected or could only be detected by a destructive
investigation after the manufacturing of the product or of one its
elements, does not exclude that the manufacturer is presumed to be
aware of the existence of the defect.
As regards sales to a consumer, the Belgian Civil Code presumes
that the lack of conformity - appearing within a six-month delay
calculated as from the delivery - existed at the moment of delivery
unless proof to the contrary (article 1649 quarter, § 4).
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 Belgian case law is attached to the “theory of the equivalence
of conditions”. The causal link is established when the damage, as
it occurs, would not have occurred if the fault had not been
committed. The criterion of the causal link is simple: it is the test
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of the sine qua non condition. One need only ask the question to
know whether the damage would have occurred, as it occurred, had
there been no fault. If the answer is affirmative, the causal link does
not exist. If the answer is negative, the causal link is established.
The causal link must not be direct. It may be indirect as soon as it
appears necessary, meaning that it is certain that the damage is an
unavoidable consequence, however immediate, of the fault.
It does not matter that the damage is not a usual consequence of the
fault, if, without the fault, the damage would not have occurred. In
such a case the causal link is established.
However, the causal link must be certain. If there is doubt, the
injured party who has the burden of proof will see her claim
dismissed.
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?
Under tort liability, if there are several producers of one defective
product which led to just one damage, the producers will be held
jointly and severally liable for this damage, without prejudice of the
recourse between the producers to obtain full or partial
reimbursement of the damage paid.
If it is impossible to determine the identity of the producer, the
injured party is allowed to act according to article 4 § 2 of the
Product Liability Act, against the supplier. If the injured party
cannot identify the producer or the supplier, she has no right of
action.
The Belgian law does not recognise market share liability.
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?
The Belgian case law gives a large application to the principle of
good faith execution of the agreements.
The good faith forces the one who knows or should know to transfer
to the contracting party all the information that one may need for
useful and safe use of the product bought.
This duty to inform is stated, implicitly but certainly, by article
1645 of the Civil Code. The law dated February 25, 1991 adds that
in the appreciation of the defect of the product, one must take into
account, among others, its presentation. A product is defective
when it does not offer the safety to which one could legitimately
expect taking into account all the circumstances. The reference,
among the circumstances to be taken into account, to the “product
presentation” demonstrates that the insufficient information of the
consumers is included in the notion of “defect”. For instance, if the
producer of a toxic paint informs, in an appropriate manner, the
users of the product’s characteristics and invites these users not to
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