Approximation of laws – Liability for defective products – Directive 85/374 – Action brought against a company wrongly considered to be the producer – Expiry of the limitation period – Substitution of the original defendant by the producer – Not permissible – Exception – Action brought against the wholly-owned subsidiary of the producer and the putting into circulation of the product at issue determined by that producer – Possibility of classifying the supplier, the original defendant, as producer – Conditions – Determination by the national court
(Council Directive 85/374, Arts 3(1) and (3), and 11)
Article 11 of Directive 85/374 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products must be interpreted as precluding national legislation which allows the substitution of one defendant for another during proceedings from being applied in a way which permits a ‘producer’, within the meaning of Article 3 of that directive, to be sued, after the expiry of the period prescribed by that article, as defendant in proceedings brought within that period against another person.
However, first, Article 11 must be interpreted as not precluding a national court from holding that, in the proceedings instituted within the period prescribed by that article against the wholly-owned subsidiary of the ‘producer’, within the meaning of Article 3(1) of Directive 85/374, that producer can be substituted for that subsidiary if that court finds that the putting into circulation of the product in question was, in fact, determined by that producer.
Second, Article 3(3) of Directive 85/374 must be interpreted as meaning that, where the person injured by an allegedly defective product was not reasonably able to identify the producer of that product before exercising his rights against the supplier of that product, that supplier must be treated as a ‘producer’ for the purposes, in particular, of the application of Article 11 of that directive, if it did not inform the injured person, on its own initiative and promptly, of the identity of the producer or its own supplier, which it is for the national court to determine in the light of the circumstances of the case.
(see paras 62-64, operative part)