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Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including litigation and appeal processes, limitation periods and costs. There are few EU harmonised procedural rules applicable to national courts.

The Product Liability Directive (85/384/EEC) also does not address the methodology for assessment of damages for defective products which is left to the national laws of the individual member states.

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including interlocutory orders and judgments.

It is possible for a national court to refer a matter to the European Court of Justice (ECJ), since the ECJ has jurisdiction to give preliminary rulings concerning the interpretation of EU law (either primary or secondary legislation) under Article 267 of the Treaty on the Functioning of the European Union. Where a question about EU law is raised before a national court of a member state (eg, relating to the meaning of a particular provision of the Product Liability Directive), if a decision on the question is necessary to enable it to give judgment in the case, the national court can request the ECJ to give a preliminary ruling on that question, provided that certain procedural requirements are satisfied.

Where a referral to the ECJ for a preliminary ruling is made, the national proceedings will be stayed until the ECJ has given its ruling. The national court remains competent for the original case.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including rules regarding pre-trial disclosure and discovery mechanisms.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including the formalities regarding evidence submission in product liability cases.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including the formalities regarding expert evidence in product liability cases.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including the formalities regarding expert evidence in product liability cases.

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

Collective redress mechanisms are made available under the national laws of the individual member states and their precise form in any member state is therefore a matter for national law. Several member states have a form of class action or other collective redress mechanism that can be used for product liability claims.

On June 11 2013 the European Commission adopted the communication "Towards a European Horizontal Framework for Collective Redress" and a non-binding recommendation on common principles for injunctive and compensatory collective redress mechanisms. In this recommendation, the commission encouraged all member states to implement collective mechanisms for both injunctive and compensatory relief concerning violations of rights granted under EU law by July 26 2015. The recommendation set out the common principles to be followed by national collective redress mechanisms.

The recommendation was reviewed by the European Commission during 2017, with a public consultation announced on May 22 2017. This public consultation sought, among other things, to identify the effectiveness and efficiency of any collective actions since the recommendation, and situations in which collective action could have been appropriate but was not taken. The consultation ran until August 15 2017 and the commission published a report on January 26 2018, together with a study on national procedural laws and practices and their impact of consumers under EU consumer law.

The report concluded that the availability of collective redress mechanisms and the implementation of safeguards against the potential abuse of such mechanisms were still not consistent across the European Union. The report found that too few member states had introduced or amended their legislation since 2013, while nine member states still did not provide for any possibility of claiming compensation collectively. On April 11 2018 the commission issued its proposal for a new directive on representative actions for the protection of the collective interests of consumers, which grew out of the ‘New Deal for Consumers’ initiative. While it is not yet clear when the proposed directive will come into force, a few key features of the directive include:

  • representative action for an injunction without the need to obtain a mandate of the individual consumers concerned;
  • ad hoc designated claimants;
  • compensation measures by redress order or declaratory decision;
  • overarching effects of final decisions of an administrative authority or court;
  • “effective, proportionate and dissuasive" penalties;
  • suspension of the limitation period of consumers concerned with the representative action; and
  • a requirement that the infringing trader informs consumers, at its own cost, of the representative action final decision, provisions for redress measures and approved settlements.

Appeals

What rules and procedures govern appeals of court decisions?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including appeal processes.

Statute of Limitations

What is the statute of limitations for filing product liability claims?

Article 10(1) of the Product Liability Directive provides a three-year limitation period for claims. Time commences from the date on which the claimant became aware – or ought reasonably to have become aware – of the damage, the defect and the producer’s identity. This period is subject to the national laws of member states regulating the suspension or interruption of running on statutory limitation periods.

Further, Article 11 provides that the rights conferred by the Product Liability Directive are extinguished 10 years from the date on which the producer put the product which caused the damage into circulation, if proceedings are not commenced within that time (the so-called ‘long-stop provision’). A product is ‘put into circulation’ when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it will be offered to the consumer.

Timeframe

What is the typical duration of proceedings in product liability cases?

The duration of product liability cases is largely dependent on the nature of the matters in issue, the procedural and case management rules and capacity of the courts of the individual member states.

In respect of preliminary references before the ECJ, based on a review of the figures published up to 2016, if a case is referred to the ECJ, the average duration is 15 months.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including those relating to the liability to pay litigation costs in civil and commercial matters.

For cases referred to the ECJ, under Article 102 of the ECJ's Rules of Procedure the referring national court will decide the costs of the preliminary ruling proceedings and who bears responsibility for solicitors' fees and expenses incurred.

What rules and restrictions (if any) govern contingency fee arrangements?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including those related to the  availability of contingency fee agreements.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including the availability of third-party litigation funding.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including those relating to the availability of legal aid.

In respect of civil cross-border disputes in the European Union, the  Cross-Border Disputes Directive (2002/8/EC) was enacted to ensure that legal aid is available to parties involved in such disputes. The directive provides a mechanism by which applicants can apply for legal aid for:

  • pre-litigation advice with a view of reaching settlement;
  • legal assistance and representation in court;
  • exemption from or assistance with the costs of proceedings, including costs related to the cross-border nature of a dispute; and
  • fees to persons mandated by the court to perform acts during the proceedings (Article 3).

The Cross-Border Disputes Directive also provides a mechanism whereby the applicant can apply for legal aid in either his or her member state of residence, or the member state of the litigation. The availability of this legal aid depends on the economic situation of the applicant, but each member state is responsible for this assessment and for setting the thresholds for legal aid (Article 5).

In respect of preliminary reference proceedings, a party can apply to the ECJ directly for legal aid to cover the costs of such proceedings. The applicant must satisfy the conditions under Article 115 of the ECJ's Rules of Procedure (ie, demonstrate that he or she cannot meet the cost of the proceedings, in whole or in part, and provide the requisite supporting information including any information about any legal aid that has been granted to the applicant by the referring court). Chapter 4 of the ECJ's Rules of Procedure sets out the procedure and relevant information.

Settlement

What rules and procedures govern the settlement of product liability cases?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including those related to settlement.

How common are settlements in product liability cases?

As settlement is governed by the laws of the individual member states, and in many cases are confidential, it is difficult to estimate how commonly this occurs across the European Union.

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

Product liability claims must be brought in the courts of member states and are governed by the procedural rules of those courts, including those in relation to ADR methods to be used before or in lieu of litigation.

However, there are a few applicable legislative instruments in EU law which concern ADR methods. The Consumer ADR Directive (2013/11/EU) obliges a trader to provide information to consumers on the ADR entity or entities under which those traders are covered, if those traders have committed to or are obliged to use those entities to resolve consumer disputes (Article 13). The directive does not impose obligations on traders to participate in ADR procedures, nor does it make the outcome of any ADR procedures binding on traders.

The Consumer ODR Regulation (524/2013) also sets out some obligations in relation to ADR for online traders. All traders established within the European Union engaging in online sales or service contracts, and online marketplaces established within the European Union, shall inform consumers about the existence of the online dispute resolution (ODR) platform and the possibility of using the ODR platform for resolving disputes. Under Article 14(1), all online traders must provide a link to the ODR platform on their websites.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

It is difficult to estimate how commonly ADR is used, since the use of ADR methods is determined by the facts and circumstances of the individual case and the availability of ADR under the rules of the member states.

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