Centre hospitalier universitaire de Besançon v Thomas Dutrueux and Caisse primaire d'assurance maladie du Jura.
Date: 2011-12-21
20. It is settled case-law that Directive 85/374 seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States (Case C‑52/00 Commission  v France [2002] ECR I‑3827, paragraph 24; Case C‑154/00 Commission  v Greece [2002] ECR I‑3879, paragraph 20; and Case C‑402/03 Skov and Bilka [2006] ECR I‑199, paragraph 23).
21. However, as is apparent from the 18 th recital in the preamble thereto, Directive 85/374 does not seek exhaustively to harmonise the sphere of liability for defective products beyond the matters regulated by it (Case C‑285/08 Moteurs Leroy Somer  [2009] ECR I‑4733, paragraphs 24 and 25).
22. The harmonised system of civil liability on the part of producers for damage caused by defective products, established by Directive 85/374, is intended, as is clear from the first recital in the preamble thereto, to ensure undistorted competition between economic operators, to facilitate the free movement of goods and to avoid differences in levels of consumer protection. The limits set by the European Union  (‘EU’) legislature to the scope of the directive are the result of a complex balancing of, inter alia, those different interests (see, to that effect, Commission  v France , paragraphs 17 and 29, and Commission  v Greece , paragraphs 13 and 29).
25. With regard, more specifically, to the provisions of Article 3 of Directive 85/374, the Court has already had occasion to state, following consideration of the travaux préparatoires  culminating in the adoption of the directive, that it was after weighing up the parts played by the various economic operators involved in the production and marketing chain that the choice was made to allocate liability for damage caused by defective products in principle to producers, and only in certain defined cases to importers and suppliers, in the legal system established by the directive ( Skov and Bilka , paragraph 29).
29. Moreover, the mere fact that there exists, alongside the system of producer liability established by Directive 85/374, a body of national rules which provide for the no-fault liability of a service provider which has, in the course of providing hospital treatment, caused damage to the recipient of the service because it has used a defective product does not undermine either the effectiveness of that system of producer liability or the objectives pursued by the EU legislature by means of the system.
30. In that regard, it must be made clear, firstly, that when the law of a Member State provides for such liability on the part of a service provider, that liability may, in any event and as has been stated in particular by the French, German and Greek Governments and by the Advocate General at point 45 of his Opinion, be introduced only on condition that it does not adversely affect the system established by Directive 85/374. Indeed, the application of national rules may not impair the effectiveness of the directive (Case C‑203/99 Veedfald  [2001] ECR I‑3569, paragraph 27). Thus, it must remain possible for the producer’s liability to be put in issue when the conditions laid down by the directive for such liability to exist are fulfilled. That possibility of putting the producer’s liability in issue must be open not only to the injured person but also to the service provider who must thus be entitled to use, to that end, a mechanism such as that of third-party proceedings, to which the national court refers in its first question.
32. In that regard, it is appropriate, first of all, to note that nothing in the wording of Directive 85/374 gives grounds for concluding that the EU legislature, in establishing producer liability for defective products, intended, so as to ensure undistorted competition and to facilitate the free movement of goods, to deny the Member States the power, as regards compensation for damage caused by a defective product used in the context of a service provision such as that at issue in the main proceedings, to provide for a system of liability on the part of the service provider corresponding to that established by Directive 85/374 (see, by analogy, Moteurs Leroy Somer , paragraph 30).
36. As to paragraphs 12 and 17 of Veedfald , to which reference has been made in the proceedings before the Court, the first question raised in the case giving rise to that judgment concerned a situation in which ‘the producer of the defective product, in the course of providing a specific medical service, produces and uses the product on a human organ’ and sought solely to ascertain whether or not, in such a situation, the defective product could be regarded as having been put into circulation within the meaning of Article 7(a) of Directive 85/374.