I INTRODUCTION TO THE PRODUCT LIABILITY FRAMEWORK
Until 1991, no specific rules on product liability existed under Belgian law. Instead, persons injured by defective products claimed damages based on either the general provisions of tort law or on the rules relating to the sale of goods. On 25 July 1985, however, the then European Economic Community adopted Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (the Product Liability Directive). This Directive was transposed into Belgian law by way of the Act of 25 February 1991 concerning liability for defective products (the Product Liability Act), which entered into force on 1 April 1991, and applies only to damage caused by defective products brought into circulation after that date. It was later amended by the Act of 12 December 2000 modifying the Act of 25 February 1991 concerning liability for defective products, to bring it in line with Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 amending Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. The Belgian legislator has chosen to adopt the European directives on product liability in full, choosing not to derogate from their provisions even where allowed.
Since Article 13 of the Product Liability Act states that the Act does not affect any rights that the injured person may have under tort law, injured persons may also base their claims on tort law or contract law. The injured person may choose to do so in cases that do not fall entirely under the scope of the Product Liability Act, such as cases involving intangible or immoveable goods, or cases where it would like to claim damages from a party other than the producer. Tort claims in product liability cases are based on Articles 1382 to 1383 of the Civil Code, the basic articles on tort law. Contractual claims are based on Article 1641 of the Civil Code, which imposes on the seller of a good the obligation to warrant that that good is free from defects, or, in the case of consumer contracts, on Article 1649 quater of the Civil Code, which was created by the Act of 1 September 2004 concerning the protection of consumers as regards the sale of consumption goods and transposed Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees into the Civil Code.
II REGULATORY OVERSIGHT
The main authorities with regard to product regulation are the Ministry for the Economy and for Consumer Affairs (the Ministry), the Consumer Safety Commission (CSC) and the Central Contact Point for Products (CCPP). The latter two were created by the Act of 9 February 1994 concerning the safety of products and services (the Product Safety Act), which implemented Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety into Belgian law, and which has since been largely replaced by Book IX of the Code of Economic Law.
The Minister can prohibit the placing of products on the markets, impose safety rules on manufacturers or order a recall of products when products are not in conformity with either specific safety rules or with the general safety rule set out in Article IX.2 of the Code of Economic Law; however, before being allowed to take any measure, the Minister must consult representatives of the manufacturers, consumer organisations and, where applicable, labour organisations.
The Minister may, however, instead of consulting any of those organisations, consult the CSC, which is the general advisory body on product safety. The CSC may further give advice to the Minister with regard to product safety policy in general, organise consultations between manufacturers, consumer organisations, and the Minister, and organise campaigns to raise awareness of product safety issues.
Article 17 of the Product Safety Act grants the CSC the power to gather all information necessary for its advice. This includes the possibility of forcing a manufacturer to produce documents that would normally be covered by trade or factory secrecy. The members of the CSC are then, however, bound by professional secrecy and may only publish the information that is directly relevant for the risk assessment of the products in question.
Finally, the CCPP only plays a coordinating role. It acts as a contact point for consumers, producers, distributors, employers, and regulatory bodies from other Member States of the European Union with regard to safety regulation questions, and sends those questions to the proper authorities. It also centralises data regarding the safety of products.
Article IX.8 Section 4 of the Code of Economic Law imposes the obligation on producers and distributors to immediately inform the CCPP of any safety risks associated with products that they have placed on the market and that would be in violation of the safety rules concerning that product. Producers and distributors must then cooperate fully with the authorities in their assessments of the risks involved. Not informing the CCPP of potential safety risks is punishable, on the basis of Article XV.102, Section 2 of the Code of Economic Law, by a criminal fine of between €208 and €200,000.
III CAUSES OF ACTION
i Claims under the Product Liability Act
Article 1 of the Product Liability Act makes a producer liable for all damage caused by a defect in its product.
Thus, any injured person, regardless of whether it had a contractual relationship with the producer of the defective good, has the right to commence proceedings for indemnification. This right is not limited to consumers, although damage to goods can only be recovered if the goods are ordinarily intended for private use and were also used as such.
A product is defined by Article 2 of the Product Liability Act as any tangible, moveable, good, even if it is part of another moveable or immoveable good. This includes electricity and, since the Act of 12 December 2000, agricultural products and game. Though doubt could exist as to whether software would fall under the definition of product, both the European Commission and the preparatory works of the Product Liability Act have stated that software must also be considered a product for product liability purposes.
An action may be lodged against the producer of a product, which can be one of four different persons on the basis of Articles 3 and 4 of the Product Liability Act:
- a the real producer (i.e., the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part);
- b the apparent producer (i.e., the person who, by putting its name, trademark or other distinguishing feature on the product presents him or herself as its producer);
- c the importer (the person who imports into the European Union a product in the course of its business with the intention of selling it or making it available for use by a third party); or
- d the supplier of the product, where the product was manufactured within the European Union, but the identity of the producer of the product is unknown, or where the product was manufactured outside the European Union and the identity of the importer is unknown (the supplier will be released of liability, however, if it informs the injured person, within a reasonable time, of the identity of the producer or importer).
The definition of producer is thus fairly broad and is interpreted broadly by the courts as well.
ii Tort claims
An injured party may also base its claim on the law of torts, contained in Articles 1382 to 1383 of the Civil Code. However, Belgian law only allows for claims to be based on the law of torts where no contractual relationship exists between the tortfeasor and the injured party. Thus, a consumer cannot hold the entity that sold him or her the defective product liable on the basis of tort law. He or she will, in that case, have to either rely on the Product Liability Act or on the law of contracts. However, once outside the contractual domain, an injured party may sue any person in torts, no matter how remotely removed they are from each other.
iii Contractual claims
Where the injured party was in a direct contractual relationship with the seller of the good, it may also base its claim on Article 1641 of the Civil Code.
While the law of contracts would normally not allow the injured party to claim damages from entities higher up the production chain with which it was not in a contractual relationship, courts have nonetheless allowed such ‘direct claims’, to circumvent the sluggish process of having each entity in the production process sue its direct contractual counterparty. Thus, where the defect can be traced back to the producer of the raw materials, the end user of the good may directly sue that producer of raw materials based on Article 1641 of the Civil Code.
As regards consumer contracts, Article 1649 quater of the Civil Code requires that the person lodging the claim is a consumer, which is defined by Article 1649 bis as any natural person who is acting for purposes that are not related to his or her trade, business or profession. The consumer may, on the basis of that article, hold a seller liable for any lack of conformity in the goods sold.
iv Criminal charges
The producer of a defective product could be prosecuted for the crime of unintentionally killing or injuring a person, defined by Articles 418 to 420 of the Criminal Code. These articles make punishable the act or omission performed without the intention of harming or killing a person, which owing to a lack of due care or precaution results in the death or injury of another person.
Criminal proceedings will usually be started by the public prosecutor, who will always be the opposing party in those proceedings, but may also be started by an injured party by filing a complaint with the investigating magistrate.
Where criminal proceedings have been started, an injured party may lodge its claim in tort directly with the criminal court, which will then render a judgment on that claim in its judgment on the criminal charges. Where an injured party chooses to lodge its claim in tort before a civil court, all civil proceedings will be stayed until after the rendition of the judgment on the criminal charges. The civil court will then be bound by the interpretation of the facts given by the criminal court in that judgment.
Product liability cases are tried before the general civil court system in Belgium. This court system consists of four distinct levels of ordinary courts:
- a the justice of the peace courts;
- b the courts of first instance, the labour courts and the commercial courts;
- c the courts of appeal; and
- d the Court of Cassation.
The justice of the peace courts are the lowest civil courts. Since they only have jurisdiction over local matters and claims below €2,500, they will only deal with minor product liability cases. Judgments rendered by the justice of the peace courts can only be appealed if the value of the claims concerned exceeds €1,860. Appeals against judgments of a justice of the peace are generally heard by the courts of first instance, unless where both parties are merchants under Belgian law, in which case appeals are heard by the commercial courts.
The courts of first instance are Belgium’s general courts, and are divided into a section for cases regarding minors and family law, a criminal section, known as the criminal court, which has jurisdiction over certain criminal offences, and a civil section, which has general jurisdiction over all civil claims not exclusively attributed by law to other courts.
The commercial courts only deal with disputes between or against enterprises (i.e., persons who permanently pursue an economic goal), which by definition includes most commercial enterprises. The main benefit of appearing before the commercial courts is that the court is partially composed of lay judges, who are themselves business people and therefore have more knowledge of commercial practice.
Appeals against decisions by the courts of first instance and the commercial courts are heard by the courts of appeal, unless the value of the claim concerned does not exceed €2,500, in which case the judgment becomes final immediately. Appeal judgments of the courts of first instance or the commercial courts against judgments of the justice of the peace courts cannot be appealed any further. The courts of appeals may, within the limits of the appeal lodged by the appellant, re-examine the facts, and are thus not bound by the interpretations made by lower courts.
Against a judgment in second instance, a party may commence proceedings before the Court of Cassation, the highest court in civil and criminal matters. The Court of Cassation’s scope of review is limited to procedural issues and the correct application of substantive law. As such, the Court of Cassation must accept the facts it is presented with as they are set out in the appeals judgment. If a judgment is quashed by the Court of Cassation, it is referred back to a court at the same level as the court that rendered the judgment.
ii Burden of proof
The general evidentiary rule of Article 870 of the Judicial Code states that each party should furnish evidence of the facts it relies on.
Claims under the Product Liability Act
The Product Liability Act created a system of faultless liability, meaning that a producer will be liable as soon as it is proven that damage has resulted from a defect present in its product, regardless of whether it committed a fault.
According to Article 5 of the Product Liability Act, an injured party may prove that a product is defective by proving it does not provide the safety that a person is entitled to expect, taking all circumstances into account. Thus, a product may be considered defective even though it operates in accordance with its design, but where it is presented in such a way that the user of the good may expect it to be safer than it is in reality; however, a product cannot be considered defective for the sole reason that a better product is subsequently put into circulation. The determination of the presence of a defect will thus be heavily fact-driven. However, where it is found that products belonging to the same group or forming part of the same production series have a potential defect, it is possible to classify as defective all products in that group or series, without there being any need to show that the product in question is defective.2
Apart from proving the presence of a defect, an injured party will also have to establish that a sufficient causal link existed between the defect and the damage suffered, such that the presence of the defect was a necessary condition for the damage to arise. Finally, an injured party will have to prove the damage it suffered.
As opposed to liability under the Product Liability Act, liability under tort law is not faultless. Articles 1382 and 1383 of the Civil Code, the legal basis for the tort of negligence, states that a person will be held to repair the damages caused by his or her fault or omission. A fault can generally be proven by demonstrating that the tortfeasor violated either of two standards: either it violated an obligation imposed on it by the law, or it neglected to behave as a normal, careful, and prudent person placed in the same situation would have.
The process of proving such a fault is, in some circumstances, made easier by the implementation of Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety into Belgian law. Article IX.2 of that Code of Economic Law contains the obligation for producers to place only safe products on the market. A violation of that obligation could be considered a fault under Article 1382 of the Civil Code. However, as a recent judgment of 22 March 2016 of the Police Court of Antwerp, section Turnhout, shows, that is not necessarily the case. In that judgment, the Police Court held that mere proof that a product is defective does not suffice to hold a producer liable on the basis of Article 1382 of the Civil Code.
Similar to the claims under the Product Liability Act, an injured party will also have to prove that the fault was a necessary condition for the damage to arise and that it suffered harm.
To sufficiently prove its claim in contract, an injured party will have to prove that a defect existed in the good that is the subject of the contract of sale. The standard of proof that the buyer has to meet in this regard is that a characteristic of the good makes it unsuitable for the purpose for which it is intended or less suitable for that purpose, to the extent where the buyer would not have bought the good had he or she known the characteristic. The buyer will also have to prove that that characteristic was already present in its incipiency at the time of the sale.
A claim lodged for breach of a consumer contract, based on Article 1649 quater of the Civil Code, requires the consumer to establish that the product was not in conformity with the contract of sale. One instance where such non-conformity is present is the situation where the good is not of the quality that is normal in goods of the same type and that the consumer could reasonably expect, given the nature of the goods.
The injured party will again have to prove that a sufficient causal link existed between the breach of contract and the damage, and that it suffered harm.
Claims under the Product Liability Act
Article 8 of the Product Liability Act states that a producer cannot be held liable when it proves that:
- a it did not put the product into circulation;3
- b having regard to the circumstances, it is probable that the defect that caused the damage did not exist at the time the product was put into circulation by it, or that the defect came into being afterwards;
- c the product was neither manufactured by it for sale or any form of distribution for economic purpose nor manufactured or distributed by it in the course of the producer’s business – this effectively requires the producer to prove that the production of the product was both non-commercial and non-professional in nature;
- d the defect is owing to compliance of the product with mandatory regulations issued by public authorities;
- e the state of scientific and technical knowledge at the time when the producer put the product into circulation was not such as to enable the existence of the defect to be discovered;4 or
- f the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.
Article 10, Section 1 of the Product Liability Act prohibits the producer from contractually creating additional grounds of defence.
Article 12 of the Product Liability Act provides a limitation period of three years for claims, starting on the day on which the injured person becomes aware, or should have been aware, of the damage, the defect and the identity of the producer, and in any event upon the expiry of a period of 10 years from the date on which the producer put the product into circulation.
Against a claim in tort, a producer can only defend itself by proving that its fault was owing to force majeure (i.e., an unforeseeable and irresistible event that made it impossible for the producer to not behave in the way it did).
Tort claims are time-barred, on the basis of Article 2262 bis of the Civil Code, five years after the day on which the injured person became aware of both the damage and the identity of the tortfeasor, and in any event 20 years after the day on which the tort was committed. Tort claims are therefore subject to a longer limitation period than claims under the Product Liability Act.
A producer might similarly defend itself against a claim in contract by proving force majeure. The statute of limitations on contractual claims expires after 10 years.
iv Personal jurisdiction
For proceedings brought before 10 January 2015, the international jurisdiction of Belgian courts is determined on the basis of Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation). For cases brought, however, after 10 January 2015, international jurisdiction is determined on the basis of Regulation 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) (the Brussels I Recast), which superseded the Brussels I Regulation, but leaves much of its rules for establishing jurisdiction untouched.
Claims against persons domiciled within the European Union must, on the basis of Article 2 of the Brussels I Regulation and Article 4 of the Brussels I Recast, be brought before the courts of the Member State of domicile of that person; however, exceptions to this general rule exist.
First, if the injured party is in a contractual relationship with the producer of the product, Article 5.1(a) of the Brussels I Regulation and Article 7.1(b) of the Brussels I Recast allow it to sue before the courts of the Member State where the defective product was delivered. Furthermore, Article 16.1 of the Brussels I Regulation and Article 18.1 of the Brussels I Recast allow the injured party, should it be a consumer, to sue the party with which it contracted before the Member State of its own domicile, if its counterparty pursues commercial or professional activities in that Member State, and the contract falls within the scope of those activities.
Second, if the injured party is not in a contractual relationship with the producer of the product, Article 5.3 of the Brussels I Regulation and Article 7.2 of the Brussels I Recast allow it to lodge a claim in tort before the courts of the Member State where the harmful event occurred.
For claims falling outside the scope of the Brussels I Regulation (those against a producer not domiciled within the European Union), the Belgian Code of Private International Law is applicable. Article 5 of that Code again states the general rule that a defendant should be sued before the courts of its domicile. However, if a contractual relationship exists between an injured party and the producer of a defective product, the injured party may sue before the Belgian courts if the contractual obligation concerned was created in Belgium or was to be performed in Belgium. Where no contractual relationship exists between the injured party and the producer, the producer may be sued in tort before the Belgian courts if either the tort was committed or the damage occurred in Belgium.
v Expert witnesses
Expert witnesses are frequently appointed by courts, especially in product liability cases, which by their nature concern technical or specialist issues. Courts are rather reluctant to rely on the findings of experts who conduct their inquiries at the request of one of the parties alone, as they are suspected of bias. Courts will therefore usually appoint independent court experts, which they can do at their own motion. These court experts will allow the parties to comment on a draft report, adduce evidence they consider necessary and ask additional questions, to ensure that each party’s viewpoint is taken into account. In the majority of cases, the final report of a court expert is accepted by the court.
Belgian law does not provide for the possibility of discovery or depositions as they are known in common law jurisdictions. Parties have to adduce those documents that they consider necessary to substantiate their claims themselves, and are not under an obligation to produce any documents that would contradict their claims.
Belgian law does know one exception to this rule. Article 877 of the Judicial Code allows a court, at its own motion or at the request of one of the parties to the dispute, to order the production of a document, regardless of whether it is held by a party to the dispute or a third party, where there are serious, precise and concurring presumptions that that party is in possession of the document and that the document contains evidence of a fact that is relevant to the case.
Where multiple parties would be held jointly and severally liable by a court for the same error or for separate errors that caused the damage to the injured person, the injured party may claim payment of his or her entire damage from one liable party.
That party may then claim contribution in that payment from the other liable parties, each having to contribute in proportion to the gravity of the contribution of their fault to the causation of the damage. The risk of insolvency of one of the liable parties is borne by the other liable parties, such that where one of the liable parties defaults on his or her contribution in the damages, the others will have to distribute this loss among themselves. Thus, where multiple parties are held liable, the injured party is protected against the insolvency of one of the liable parties, since it can claim full payment from the most solvent liable party.
viii Mass tort actions
Class actions became available under Belgian law by the entry into force on 1 September 2014 of the Act of 28 March 2014 on the insertion of a Title 2 ‘Actions for collective redress’ into Book XVII of the Code of Economic Law. Class action proceedings are only available to plaintiffs whose claims are based on specific statutes, and only for cases where the cause of the collective harm occurred after 1 September 2014. Pursuant to Articles XVII.36 and XVII.37 of the Code of Economic Law, the Product Liability Act is included in this list of specific statutes on which a class action may be based.
Whether the class action requires plaintiffs to opt in or opt out is, for Belgian plaintiffs, left up to the discretion of the court; however, an opt-in system must always be used for foreign plaintiffs. A class action can only be brought by a class representative, which may be either a recognised consumer organisation, the Federal Ombudsman for Consumer Affairs, or any organisation authorised by the Minister. In a recent judgment of the Constitutional Court of 17 March 2016, this limitation was declared unconstitutional and annulled to the extent that class representatives from other EU and EEA Member States complying with the requirements of point 4 of Recommendation 2013/396/EU could not bring a class action. Until the legislator amends this statutory provision, the courts will therefore allow claims brought by such representatives from other EU and EEA Member States.
Before the court assesses the class’ claim on its merits, it must first set a time period during which the class representative and the defendant must negotiate on a collective settlement. If a settlement is reached and receives court approval, it becomes binding on the entire class. Only when no such settlement can be reached will the court hear the case on its merits.
In addition to the possibility of a class action, actions brought separately by different persons but having the same object may be joined where the court considers it beneficial.
Belgian law turns on the principle that damages should place the injured party in the same position it would have found itself in had the event causing the damage not occurred. This includes not only damages for costs that have actually been incurred owing to the injury, such as hospitalisation and recovery costs, but also non-economic (moral) damages for pain, suffering and disfigurement. Punitive damages, however, cannot be awarded. There is no cap as to the amount of damages recoverable under Belgian law.
Under the Product Liability Act, damages for personal injury are subject to the general principles of Belgian law (i.e., that both costs incurred and moral damages must be awarded), but damages suffered to goods may only be awarded if the goods are ordinarily intended for private use or consumption and are used by the injured person mainly for his or her own private use or consumption. Even when damage to goods satisfies these two conditions, damages may only be awarded for the amount exceeding €500, so that the injured party must bear the first €500 in losses itself.
V YEAR IN REVIEW
2016 only saw two published judgments concerning product liability and safety claims, both of which entailed straightforward applications of the rules set out above, with no major surprises. 2016 was therefore a relatively quiet year in terms of product liability and product safety cases.
A first judgment, of the Court of Appeal of Liège, concerned a man losing three fingers owing to a defective circular saw. The saw that caused the harm was already the second one of that type that the victim owned. He had exchanged the first one for a new saw after it turned out to be defective. The Court of Appeal held that this exchange did not prove that the victim should have been aware that the saw was unsafe. Furthermore, the Court of Appeal applied a very factual test to determine whether a company could qualify as the ‘importer’ under Article 4, Section 1 of the Product Liability Act.
A second judgment, of the Police Court of Antwerp, section Turnhout, concerned a bicycle tyre that exploded, causing its owner to fall. The court rejected the claim based on the Product Liability Act against the producer of the tyres, since it was proved that the defect was not already present in the tyre when it was manufactured. The bicycle salesman, however, did not manage to prove that the defect was not yet present when he put it into circulation, and was therefore held liable. The claim against the bicycle salesman based on Article 1382 of the Civil Code was rejected, since the victim did not sufficiently prove a fault.
Finally, the Constitutional Court rendered an important judgment in the field of class action suits on 17 March 2016, by holding that the limitation of the right to bring a class action to certain entities was unconstitutional to the extent that it excluded class representatives from other EU and EEA Member States complying with the requirements of point 4 of Recommendation 2013/396/EU. Until the legislator amends this statutory provision, those EU and EEA class representatives will be able to bring class action suits.
1 Joost Verlinden is a partner and Gert-Jan Hendrix is an associate at Linklaters LLP.
2 Cases C-503/13 and 504/13 Boston Scientific Medizintechnik GmbH , paragraph 41.
3 The European Court of Justice has held that this defence covers cases where a person other than the producer has caused the product to leave the process of manufacture, where the product was used contrary to the producer’s intention, or where the product is used for private purposes or in similar situations (Case C-127/04 O’Byrne  ECR I-1330, paragraph 24; see also: Case C-203/99 Henning Veedfald  ECR I-3569, paragraph 16).
4 The state of scientific and technical knowledge has to be assessed objectively, meaning that it includes all knowledge that the producer should have been aware of, and not only that knowledge of which it was effectively aware.