Posts Tagged Product liability
Liability for defective products and the relationship between Brussels I and Rome II. The ECJ in Kainz.
In Case C-45/13 Andreas Kainz v Pantherwerke AG, the ECJ held on the determination of locus delicti commissi, the place giving rise to the damage, in the case of defective products. It held this was the place where the product in question was manufactured. The special jurisdictional rules of Article 5 are in effect forum conveniens applications: they are intended to enable the court objectively best placed to determine whether the elements establishing the liability of the person sued are present, to assume jurisdiction. For product liability cases, this includes inter alia the possibility of gathering evidence in order to establish the defect in question.
Pantherwerke AG is an undertaking established in Germany which manufactures and sells bicycles. Mr Kainz, resident in Salzburg, purchased a bicycle manufactured by Pantherwerke from Funbike GmbH, a company established in Austria. On 3 July 2009, while riding that bicycle in Germany, Mr Kainz suffered a fall and was thereby injured. The place of the event giving rise to the damage is, Mr Kainz claims, located in Austria as the bicycle was brought into circulation there, in the sense that the product was there made available to the end-user by way of commercial distribution.
Mr Kainz argued specifically that the Courts should take into account not only the interests of the proper administration of justice but also those of the person sustaining the damage, thereby enabling him to bring his action before a court of the Member State in which he is domiciled. The ECJ disagreed, at 20:
‘although it is apparent from recital 7 in the preamble to Regulation No 864/2007 that the European Union legislature sought to ensure consistency between Regulation No 44/2001, on the one hand, and the substantive scope and the provisions of Regulation No 864/2007, on the other, that does not mean, however, that the provisions of Regulation No 44/2001 must for that reason be interpreted in the light of the provisions of Regulation No 864/2007. The objective of consistency cannot, in any event, lead to the provisions of Regulation No 44/2001 being interpreted in a manner which is unconnected to the scheme and objectives pursued by that regulation.’
This is a statement I like a lot and have advocated for some time. In general, I find the link between applicable law and jurisdiction (often leading to Gleichlauf-type considerations; such as in Article 22’s exclusive jurisdictional rules) not very attractive.
The Irish High Court in Harley Medical Group: Textbook application of COMI following PIP implants liability
In Harley Medical Group, the Irish High Court has made a textbook application of the determination of jurisdiction under the EU’s Insolvency Regulation. The Court held in May, the case has only now come to my attention.
Harley Medical Group (Ireland) Ltd has its registered office in the British Virgin Islands. It had registered in the Companies Registration Office (CRO) in Ireland as an external company with a branch established in the State pursuant to the European Communities (Branch Disclosure) Regulations 1993. The sole shareholder sought winding up in Ireland. Liabilities arose from claims against Harley by 158 former patients in respect of cosmetic treatment they received. Many of those claims arise from breast implant operations using breast implants from PIP, a French registered company. The Company was informed by its insurers that its insurance cover does not extend to product liability claims for products sourced from a third party.
The patients opposed jurisdiction, seeking to have the case heard in the UK instead: lex concursus would then have been English law, which allegedly would have been more favourable on account of the Third Parties (Rights against Insurers) Act 2010: this would allegedly give the claimants better rights against the insurer. As the High Court correctly held, however,
‘The perceived advantage to the Opposing Creditors of this Court declining jurisdiction to wind up the Company is articulated as follows in [ ] ’s second affidavit, where it is averred that –
“. . . the creditors believe their rights under UK legislation with regard to any relevant policies of insurance indemnifying or intended to indemnify the Company against claims such as those of the creditors will be stronger than under Irish law.”
The Court was referred to a UK statute entitled Third Parties (Rights against Insurers) Act 2010. That contention is immaterial to the Court’s function on this application and it would be inappropriate for the Court to express any view on it. (at 37)
The High Court swiftly rejected the notion that the Regulation does not apply because of the non-EU incorporation of the company: from the moment the company’s COMI – Centre of Main Interest is in the EU, the Regulation does apply. Neither does it matter that the company is part of a group of undertakings, and that a company within the group with which it was associated had been placed in administration in the UK: COMI, per Eurofood (notably, upon reference by the Irish Supreme Court), needs to be individually determined per corporation.
The Court subsequently reviewed the rebuttable presumption of COMI as being the place of incorporation (here: BVI). Per Interedil, this requires the court seized to review whether the Company’s actual centre of management and supervision and of the management of its interests is located in its territory, ! in a manner that is ascertainable by third parties. Both conditions were fulfilled:
On the condition of ‘actual centre of management and supervision and of the management of its interests’ the High Court accepted the following indices:
- – The Company has never traded in any jurisdiction other than Ireland.
- – all surgical treatments had been carried out in Ireland, the operations having been performed by surgeons registered with the Irish Medical Council;
- – the Company was registered as a branch in Ireland and subsequently filed all of the statutory returns as was required by law.
- – All employees of the Company are located in Ireland.
- – The Company’s only place of business is at Dublin.
- – The Company’s address for correspondence has at all times been located in Ireland.
- – The Company is registered with the Irish Revenue Commissioners for VAT, and relevant national insurance payments.
- – The Company is not tax resident in any other jurisdiction.
- – The Company does not operate any bank account in any other jurisdiction other than Ireland;
- – The Company board meetings typically took place in Guernsey. However, in the last fourteen months, they have taken place either in London or in Dublin.
On the matter of ascertainability by third parties, that all of the Company’s activities have been conducted in Ireland since 1999 and that the administration of its interests has been continuously conducted in Ireland, has been readily ascertainable by third parties by conducting a search in the CRO and an inspection of the documents filed by the Company in the CRO in accordance with the law of Ireland.
Top marks, I’ld say.