In the Spanish legal system product liability legislation was to be found, until very recently, in article 1902 of the Civil Code (hereinafter, “Cc”), which sets out the rules concerning liability in tort, in the Consumers and Users (Protection) Act (hereinafter, “CUPA”) and in the Defective Products (Liability) Act (hereinafter, “Dpla”), which transposed the EEC Directive of the 25th of July 1985 concerning Liability for Defective Products (hereinafter, the “85/374 Directive”).
The moment at which the product had been put into circulation determined which particular set of rules applied. For these purposes, “putting into circulation” means the voluntary delivery of the product by the manufacturer, which, for practical purposes, means distributing the product or making it available to the relevant persons.
Under the DPLA’s Final Provision, this act applied to those instances of product liability in which the relevant product had been put into circulation after the 8th of July 1994 (i.e., on the day following the coming into force of the DPLA). The CUPA applied to any products put into circulation between the 13th of August 1984 and the 8th of July 1994 and, finally, article 1902 Cc applied to any products put into circulation before the coming into force of the CUPA, that is, before the 13th of August 1984.
Note that where one particular set of rules applied the rest did not and, as has just been stated, the moment at which a product had been put into circulation determined which set of rules applied.
The rules differed in such matters as the identification of the person responsible, the circle of possible injured persons and the damages covered. However, the underlying purpose of all of those sets of rules and the definition of defective product were the same. This latter question was explicitly addressed in the 85/374 Directive and the DPLA (which, as indicated, transposed the 85/374 Directive).
The diversity of this product liability regime came to an end by virtue of the coming into force of the Royal Legislative Decree 1/2007, which enacted the Consumers and Users Protection (Consolidation) Act and other complementary regulations (hereinafter, “RLD 1/2007”).
Both CUPA and DPLA (among other consumer protection regulations) were repealed following their consolidation into RLD 1/2007. This means that RLD 1/2007, which does not substantially differ from the DPLA, (and therefore follows the guidelines laid down by the 85/374 Directive) is currently the only set of rules applicable to liability for defective products.
The Third Transitory Provision of RLD 1/2007 provides for specific rules applicable to any products put into circulation before the 8th of July 1994 (i.e. before the coming into force of the DPLA), to be made. However, a scenario calling for the application of such transitory rules is highly unlikely to arise. This is because under section 144 RLD 1/2007 the liability of manufacturers expires after 10 years from the date on which the product was put into circulation, as was the case under section 14 DPLA.
The following sections address the most significant issues raised concerning product liability in Spain after the coming into force of RLD 1/2007.
Scope
Meaning of “defect”
The definition of “defective product” contained in RLD 1/2007 is identical to that under the former legislation. A product is deemed to be defective where it does not sufficiently guarantee the safety that is expected of it.
In order to establish whether a given product is or is not defective it must satisfy the non-safety test. Other tests, including that of substandard quality or unfitness for purpose do not apply, as these befit the system of liability for non-conformity or unfitness for purpose regulated in article 1484 et seq. CC and in Title V, Book II of RLD 1/2007 formerly regulated in the Consumer Goods Sale (Warranties) Act.
RLD 1/2007 does not draw a distinction among the three types of defects traditionally identified by legal scholars:
(i) Manufacture defects. These arise from flaws in the manufacturing process and often affect individual products within the same series.
(ii) Project or design defects. These arise from flawed technical designs prior to manufacture (that is, at the technical ideation stage of the product) and often affect all of the units manufactured.
(iii) Information defects. These arise from flawed, incomplete, or insufficient information that induces consumers into error as to the manner in which a given product should be used and/or its degree of safety.
As for information defects it may be argued that, by using the degree of safety test in order to establish whether a product is or is not defective, the law actually calls for an assessment of the extent to which the potential risks associated with a particular product are known. In this way a product will be regarded as defective when it falls short of providing the safety expected of it or, to put it differently, when it does not provide the safety that consumers expect.
Conversely, no liability will arise where the risks associated with a given product are known by the injured person. In these circumstances, the fact that a product is not safe is part and parcel of what is to be expected from the relevant product (theory of assumed risks). This may occur because (i) such risks are obvious (e.g., a knife or a pair of scissors are cutting instruments), or (ii) such risks are socially and culturally known by the public (e.g., risks associated with tobacco or alcohol consumption) or (iii) the manufacturer, in compliance with its duty to provide the necessary information about its product, has provided to the injured persons adequate instructions for use and information about the risks associated with such use.
Clearly, safety expectations are to be assessed from an objective standpoint and by having regard to the average individual’s knowledge and to the manufacturer’s lawful expectations about use. The subjective perspective of the particular injured person must be disregarded for these purposes.
The 85/374 Directive, the DPLA and RLD 1/2007 provide that the product presentation, the reasonable use of the product, and the moment of its putting into circulation are criteria that must be taken into account in considering the expectations that injured persons could properly have of the relevant product.
Objective scope of application
As has been pointed out above the coming into force of RLD 1/2007 put to an end, with a few exceptions that are discussed below, to the diversity of regimes concerning product liability. To put it in another way: as of the 1st December 2007 there are no rules on product liability other than those laid down in RLD 1/2007. Following very closely the definition given in the DPLA, as part of the general provisions laid down in Title I, Book III, section 129 RLD 1/2007 defines its scope of protection as follows:
The liability provisions laid down in this book apply to personal injuries (including death) and damages to property provided that such damages concern goods or services meant for private use or consumption and provided that such goods or services have been used mainly as such by the injured person.
However, section 142 RLD 1/2007 restricts such protection by removing from its scope of application the damages caused to the defective product itself:
Damages to the product are not liable to compensation under this chapter, without prejudice to the injured party’s right to be indemnified according to civil and commercial laws.
In summary, in line with the DPLA the RLD 1/2007 affords protection against personal injuries suffered as a result of the use or consumption of a defective product, including damages caused to things other than the product, provided that the product in question is meant for private consumption.
Liable individuals
Under RLD 1/2007 liability for defective products falls on producers. For these purposes “producer” encompasses manufacturers and importers of a product or service into the European Union and those who present themselves as manufacturers or producers on the product container or packaging. Note that, under the DPLA, importers into Spain of a product manufactured elsewhere in the European Union were not regarded as importers.
It should be pointed out that the statutory definition of “producer” contained in RLD 1/2007 comprises manufacturers of finished products, the producer of any component part, the producer of a raw material and importers of such finished products, component parts, and raw materials.
Suppliers are only liable to the extent that the producer may not be identified or to the extent that the supplier has knowingly put into circulation a defective product.
As has been noted above until the 1st December 2007 (i.e. the date on which RLD 1/2007 came into force) the three sets of regulations concerning product liability differed, among other issues, as to the definition of persons liable for the damages caused by the defective product. Whilst section 1 DPLA regarded manufacturers or, where appropriate, importers as primarily responsible, the CUPA also regarded as liable those who had taken part in the product production and distribution processes. Finally, section 1902 Cc provided for the liability of any person who had effectively taken part in the production of the injury.
Therefore it would appear that RLD 1/2007 has actually restricted the circle of potentially liable persons.
i. Injured persons
Unlike the CUPA (which only protected consumers and users) RLD 1/2007 follows the DPLA in that any person injured by a defective product can claim the protection afforded by RLD 1/2007, whether or not he (or she) satisfies the statutory definition of consumer.
ii. Relief from liability causes
As with the former section 6 DPLA, section 140 RLD 1/2007 provides that manufacturers or importers are not liable as long as evidence of any of the following circumstances is provided:
a) That the product was not put into circulation by the relevant manufacturer or importer;
b) That, having regard to the circumstances, it was to be expected that no defect existed at the time in which the product was put into circulation;
c) That the product was neither manufactured for sale or for any other method of distribution for an economic purpose or that the product was neither manufactured nor imported, supplied nor distributed in the course of a professional or business activity;
d) That the defect was the result of the manufacturing of the product in accordance with mandatory rules in force;
e) That the state of scientific and technical knowledge at the time of the putting into circulation of the product was not such so as to enable the existence of the defect to be discovered.
Alongside such exemptions from liability it is worthwhile to examine in detail the state of scientific knowledge and compliance with mandatory rules.
State of scientific knowledge: development risks
Under this exemption of liability, damages caused by a defective product will not attract to compensation where the state of scientific or technical knowledge at the time the damage was caused was not sufficient to avoid such damage.
Therefore manufacturers whose production activity adheres to the scientific and technical knowledge available at the time of putting their products into circulation will be relieved of liability, provided that the state of scientific and technical knowledge was not such so as to allow the discovery of the defect.
Some scholars suggest that reliance on generally known empirical knowledge is not enough for manufacturers to successfully claim this exemption of liability. Manufacturers need also to ensure that they rely on state-of-the art scientific knowledge and/or research. This is tantamount to an implicit duty on the part of manufacturers to conduct research into the safety of their products whatever the manufacturer’s turnover, market position and financial resources.
Following the DPLA, under RLD 1/2007 there are two instances in which manufacturers are liable despite having conducted their activity in accordance with the state-of-the art scientific and technical knowledge available at the time of putting their products into circulation. This is the case with drugs and foodstuffs meant for human consumption. This means that the law imposes a more stringent and direct duty to conduct research into the safety of these products.
Compliance with mandatory rules
Under section 140 d) RLD 1/2007 where the defect results from compliance with mandatory rules in force, manufacturers may rely on these grounds to be relieved of liability for any damages caused.
In Spain there is no case law on this issue but scholars have argued that, in order to rely on compliance with mandatory rules as an exemption of liability cause, other requirements must be satisfied:
- Such mandatory rules must emanate from public authorities. Compliance with mere certification or authorisation rules (which are not binding), including rules enacted by private entities or associations is not enough for successfully invoking this exoneration of liability cause.
- The rule(s) must be compulsory (i.e. not voluntary). This means that such rules must “contain an absolute mandate in the sense of compelling manufacturers to act in a particular way or to refrain from undertaking certain actions.” In other words, such mandates or prohibitions must be inexorably adhered to under the threat of a penalty in case of violation.
In contrast, manufacturers cannot rely on this exemption of liability by claiming that the defect derives from compliance with voluntary rules. The fact that a given rule is imperative must not leave manufacturers any margin for manoeuvre or for alternative solutions.
- Finally, the defect must be the result of complying with mandatory rules. That is to say, there must be a causal link between compliance with the relevant mandatory rule and the product defect.
Conclusion
In conclusion, it may be argued that the coming into force of RLD 1/2007 has resulted in the desirable unification of the product liability regime, which follows the principles laid down by the DPLA and the 85/374 Directive, thereby putting to an end to the diversity of legislation that characterised the Spanish system of product liability.
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Cristina Ayo Ferrándiz
URIA MENENDEZ ABOGADOS SLP
