Updates X3

• Published date: 30 June 2020
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Product Liability & Safety, Trials & Appeals & Compensation, Food and Drugs Law
• Law Firm: Reed Smith
• Author: Mr James Beck

Today we're updating our readers on new developments this month relating to three of our prior posts.

First, back in March we reported on an "Advocate's General's opinion" in a case before the European Court of Justice ("ECJ"). See the original post for details, but the plaintiff was asserting the radical claim that EU principles of "non-discrimination" meant that, once any member state adopted a rule that expanded liability, all other member states had to follow that rule so that no plaintiff was "discriminated against" on the basis of residency in the EU. Fortunately, as we discussed in March, the Advocate General rejected that theory - and we were informed that the ECJ itself almost always respected the Advocate General's views.

The ECJ has now decided the case. See RB v TUV Rheinland LGA Products GmbH, ECLI:EU:C:2020:453, slip op. (E.C.J. June 11, 2020). As we had hoped, the plaintiff lost, however, the ECJ avoided passing judgment on the wildly expansive theory that the Advocate General had rejected.

Instead, the court held that the plaintiff lost on a preliminary issue. The case involved a product liability insurance policy, issued in France to a French medical device manufacturer (now bankrupt), and according to the ECJ that set of facts did not implicate EU law (as opposed to member state law) at all. The anti-discrimination "provision is intended to apply independently only to situations governed by EU law in respect of which the Treaties lay down no specific rules on non-discrimination." Slip op. at '31. That was not the case here:

[I]t is clear that there is not, in EU secondary law, any provision which imposes an obligation on the manufacturer of medical devices to take out civil liability insurance designed to cover risks linked to those devices or which regulates, in one way or another, such insurance.

Id. '37. That's because the EU's product liability directive "does not impose any obligation on the manufacturer of such products to take out civil liability insurance against any harm," nor does it "seek exhaustively to harmonise the sphere of liability for defective products beyond the matters regulated by that directive." Id. '41-42. The other directive the plaintiff asserted, concerning "services in the [EU] internal market," "does not apply to financial services such as insurance." Id. '42.

Further harming the plaintiff's case were her particular facts - her product use occurred solely in the nation in which she resided.

[I]t is clear that the applicant in the main proceedings, a German citizen who seeks the...