BGH; 2023-08-01; VI ZR 82/22
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:010823UVIZR82.22.0
Date: 2023-08-01
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0801(51)_ENG_SUMJURE
JURE summary
JURE summary
This case involves a plaintiff who had a total hip endoprosthesis implanted in 2007. The prosthesis was manufactured by the defendant and implanted at a specialised clinic. In 2011, the ceramic inlay of the prosthesis broke, necessitating a replacement. The plaintiff filed a lawsuit seeking damages, alleging that the product was defective.
The Landgericht Potsdam (hereinafter ‘the Court of First Instance’) dismissed the request, and the Brandenburgisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) rejected the appeal.
First, the Supreme Court had to determine the competence of German courts. The case was brought in 2015. Hence, the jurisdiction of German courts arises from Article 5(3) of the Brussels I Regulation (1). As per Article 66(1) of the Brussels I Regulation (recast) (2), the recast only applies to proceedings that debuted on 10th January 2015 or thereafter.
The Supreme Court reminds that the concept of tort in Article 5(3) of the Brussels I Regulation must be interpreted autonomously in the sense that it refers to any action asserting the defendant's liability for damages that is not linked to a contract within the meaning of Article 5(1), point (a), of the Brussels I Regulation, as per principles set in Case C-375/13 (3). This also includes claims against the manufacturer of a product arising from product liability, as the principles set in the Case C‑45/13 (4). Paragraph 23 of the latter decision clarifies that the expression ‘place where the harmful event occurred’ in Article 5(3) of the Brussels I Regulation is to be understood as meaning both the place where the damage occurred and the place of the causal event giving rise to that damage and thus the manufacturer can be sued before the court of one of these two places.
When it comes to the choice of law, the parties made an express choice of law in favour of German law at the oral hearing in the appeal instance. The Supreme Court adds that it can be left open whether the choice of law is based on Article 14(1), point (a), of Rome II Regulation (5) or on Article 42 of the EGBGB (6).
Nonetheless, the Supreme Court provides that Article 31 of the Rome II Regulation only applies to events giving rise to damages that occurred after 11 January 2009, as per paragraph 37 of C-375/13. In the case of product liability, the Supreme Court recalls that the overwhelming view amongst scholars considers placing the product on the market to be the event giving rise to the damage.
The Supreme Court further held that the Court of Appeal did not err in law in determining that the plaintiff did not prove the product was defective under Article 3(1) of the ProdHaftG (7). The manufacturer's liability for damages requires proof that the product did not offer the safety reasonably expected, considering its intended purpose and user group, as set in paragraph 38 of C-375/13. The Supreme Court found no manufacturing defect, noting no typical sequence of events indicating a defect under Article 3(1) of the ProdHaftG.
The Supreme Court held that the European case law regarding pacemakers is not applicable here. Paragraphs 39 and seq. of C-375/13 held that for medical devices like pacemakers and implantable cardioverter defibrillators, patients are entitled to expect particularly high safety standards due to their function and the vulnerability of the users. A manufacturer's liability for these devices arises from their exceptional potential for harm. If a defect is found in a product group or series, all products in that group can be deemed defective without proving an actual defect in each specific product.
The Supreme Court dismissed the appeal.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(3) Judgment of the Court of Justice of 28 January 2015, Harald Kolassa v Barclays Bank plc, C-375/13, ECLI:EU:C:2015:37, paragraph 44.
(4) Judgment of the Court of Justice of 16 January 2014, Andreas Kainz v Pantherwerke AG, C‑45/13, ECLI:EU:C:2014:7, paragraph 18 and seq.
(5) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).
(6) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory law to the Civil Code).
(7) Produkthaftungsgesetz (Act on Liability for Defective Products).