Case C-327/05: Action brought on 30 August 2005 by the Commission of the European Communities against the Kingdom of Denmark
Date: 2005-10-15
Institutions: Court of Justice
Subjects: Denmark, European Commission, action for failure to fulfil an obligation, defective product, producer's liability, trade intermediary

15.10.2005

EN

Official Journal of the European Union

C 257/7

Since it was part of an individual decision, it should have been
‘properly’ brought to his knowledge.

From the entirety of the arguments set out above, it is apparent
that the Court of First Instance made an error of law.

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

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 Commu-
nities, 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 provi-
sions 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 approxima-
tion of the laws, regulations and administrative provisions
of
the Member States concerning liability for defective
products, the Kingdom of Denmark has failed in its obliga-
tion to give full effect to that directive;

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 subse-
quent intermediaries in the distribution chain’.

The result of the Danish rules on the vicarious liability of inter-
mediaries 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 defec-
tive 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 Produk-
tansvarslov, 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 direc-
tive 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.