‘One for all, all for one': the sweeping notion of defects in product liability case Boston Scientific

Luigi Lonardo, LLM in EU Law, King’s College London

The Court of Justice of the European Union’s (CJEU) first ruling on what is a ‘defective product’[1] will likely not be the last one, since it was highly ambiguous to say the least. The judgement is doomed to have broad repercussions indeed on European product liability litigation and consumer protection law.

The Court found that, with reference to medical devices implantable in the human body, “a product is defective within the meaning of Article 6 of Directive 85/374[2] (“the Directive”) “if products belonging to the same group or forming part of the same production series have a potential defect. In other words, there is no need to prove the defect in each individual case, if other products in the same batch have a potential defect. Moreover, the Court stated, under Article 9 of the same Directive, the producer is liable for the damages caused by a surgical operation necessary to replace a defective product.

Even if limited to implantable medical devices, such a definition may nonetheless surge compensation claims against producers and insurers for two reasons. First it simplifies what the claimant has to prove. Second it resorts to ill-defined concepts that may lead national courts to request further clarifications and plaintiffs to try action by taking advantage of the indiscriminate wording of Boston Scientific.

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When the Presumption of Compliance Results in Outsourcing of Responsibility: Protecting the Fundamental Rights of Europe’s Asylum Seekers

Amy Dunne, LLB (Trinity College Dublin), Master of Law, KU Leuven (cum laude), PhD candidate Leiden Universiteit and Knowledge Management, Freshfields Bruckhaus Deringer LLP, Brussels 

This submission discusses the limits of the presumption of compliance as encapsulated by the sovereignty clause, Article 3(2), of Regulation (EC) No 604/2013 (Dublin III Regulation) through analysing the evolutions set out in the ECtHR case Tarakhel v Switzerland. It is argued herein that the presumption of compliance has diminished the collective responsibility of Member States for Europe’s asylum seekers – with northern States relying on the presumption to outsource their collective responsibility to southern States, without due regard for fundamental rights concerns, in a manner contrary to the spirit of the Dublin Regulation. Continue reading

The post-crisis EU regulation targeting hedge funds

Tiago Ventura Mendes,
LL.M. in European Banking and Financial Law, University of Luxembourg
LL.M. Candidate in International Financial Law, King’s College London

  1. The politically driven rationales to regulate hedge funds.

It is generally agreed that modern hedge funds have made their appearance around 60 years ago when Alfred Winslow Jones, a financially educated journalist, decided to invest in stock amalgamating long and short positions.[1] A hedge fund can be considered as being “any pooled investment vehicle that is privately organized, administered by professional investment managers, and not widely available to the public”.[2] The term “hedge” leads one to believe that one important characteristic of those funds is the usage of certain financial instruments for hedging purposes[3] in addition to engaging in other trading strategies seeking to protect themselves from adverse market movements[4]. They invest very actively in liquid public markets while using short-term investment strategies and sophisticated investment techniques as derivatives trading and short-selling but also enter in heavy leveraged transactions.[5]  Hedge funds have been seen as playing fundamental roles in the market as contributing to market efficiency, promoting well-functioning corporate governance, unveiling fraudulent scandals and agitating boardrooms as active investors[6]. Continue reading

Would the UK be forced to exit the EU if it exits the ECHR?

Mr Émile T. McHarsky-Todoroff LL.B (Surrey) LL.M Candidate (LSE), Associate Tutor in EU Law (University of Surrey) and Legal Consultant (Spectrum Legal Consulting).

There has been a considerable degree of noise around both the concept of “Brexit” (a potential UK exit from the EU) and the possibility of the UK withdrawing from the European Convention of Human Rights (ECHR) in some fashion. Leaving political arguments to one side, this blog post is interested in whether these two hypotheticals may interconnect; specifically, whether a UK exit from the ECHR would entail that the UK has to also leave the EU. This immediately begs the question of what one means by “has to”. If this is taken to mean a legal requirement that the UK leaves the EU should it choose to withdraw from the ECHR, then the answer is a flat “no”.  While the Lisbon Treaty introduced the machinery for a Member State to leave the Union (now Article 50 of the Treaty on European Union (TEU)),[1] there is no “foot to backside” rule in the EU; in other words there is no Treaty provision which specifically allows for a Member State to be ejected from the EU.[2] Therefore, this post will aim to explore the different legal tools which could be used to push the UK out of the EU door. Continue reading

Opinion 2/13 of the Court of Justice of the European Union

Amanda Spalding, PhD Candidate, King’s College London, The Dickson Poon School of Law – Teaching Fellow, SOAS, School of Law

The Court of Justice of the European Union (CJEU) has finally given its opinion as to the validity of the draft agreement on the accession of the European Union to the European Convention of Human Rights. Unfortunately, it found that the draft agreement is not compatible with EU law. This is a significant set-back to an already complex and drawn-out process of accession.

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