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’ 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 (“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.