# C_2005257EN.01000701.xml

| 15.10.2005 | EN | Official Journal of the European Union | C 257/7 |
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15.10.2005

EN

Official Journal of the European Union

C 257/7

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Action brought on 30 August 2005 by the Commission of the European Communities against the Kingdom of Denmark

(Case C-327/05)

(2005/C 257/12)

Language of the case: Danish

An action against the Kingdom of Denmark was brought before the Court of Justice of the European Communities on 30 August 2005 by the Commission of the European Communities, represented by N.B. Rasmussen and A. Caeiros, acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by introducing and maintaining in force provisions which make intermediaries in the distribution chain liable under the same conditions as a manufacturer, contrary to Article 3(3) of Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, the Kingdom of Denmark has failed in its obligation to give full effect to that directive; |
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1.

declare that, by introducing and maintaining in force provisions which make intermediaries in the distribution chain liable under the same conditions as a manufacturer, contrary to Article 3(3) of Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, the Kingdom of Denmark has failed in its obligation to give full effect to that directive;

| 2. | order the Kingdom of Denmark to pay the costs. |
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2.

order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Paragraph 10 of the Danish Produktansvarslov (Law on Product Liability) provides that an intermediary ‘is directly liable in respect of defective products vis-à-vis injured parties and subsequent intermediaries in the distribution chain’.

The result of the Danish rules on the vicarious liability of intermediaries is that injured parties may bring an action directly against the intermediary (a term which is covered by ‘suppliers’, as defined in Article 3(3) of the directive), provided that the conditions governing an action in respect of defective product liability against the manufacturer are satisfied, that is to say, in so far as the injured party can establish that damage has been incurred as the result of a defective product. The issue as to whether the intermediary has or has not acted negligently is thus irrelevant in regard to the imposition of vicarious liability. The determinant factor is that liability in respect of the defective product can be imposed on the manufacturer.

Any person on whom, as an intermediary, vicarious liability has been imposed, may, under Paragraph 11(3) of the Produktansvarslov, bring an action for indemnification against both the preceding intermediary and the manufacturer.

It is the vicarious liability imposed on the intermediary that is contrary to the directive. The reason for this is that the directive provides that strict liability for defective products may be imposed on the manufacturer — and on the manufacturer alone. It is only in the instances indicated by the directive (Article 3(3)) that liability in respect of defective products can be imposed on the intermediary on an objective basis.

The Danish rules diverge from that system by introducing strict liability to pay compensation in the form of strict vicarious liability for intermediaries in all cases in which liability for defective products could be imposed on a manufacturer on an objective basis.

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