Luxembourg, 26/09/2001 (Agence Europe) - Advocate General Liindert Geelhoed considers that Spanish victims of contamination due to transfusions must be compensated on the basis of the 1985 European directive relating to liability from defective products even if the latter is less favourable than the Spanish law, that was in force before Spain transposed the European directive.
Victoria Gonzalez Sanchez was contaminated with the hepatitis C virus in a Spanish hospital centre, the "Centro Medico Asturias". She is calling for compensation on the basis of the Spanish law of 1984 more favourable for her than the current legislation adopted in 1994. Ms. Gonzalez Sanchez lodged her request for compensation before the judge of the Court of First Instance of Aviedo, who, before ruling, had sent the case on to the Court of Justice. He had asked of it whether the European directive could limit or restrain acquired consumer rights.
Advocate General Geelhoed answered that the Spanish legislation of 1984 could no longer apply. The 1985 Directive provides total harmonisation of strict liability in case of product defect.. Worth noting, that the 1994 law fully transposes, years behind schedule, the 1985 directive that allows for the victims of a defective product to engage the liability of the manufacturer without having to prove the latter's negligence.
The French, Greek and Austrian governments intervened on the side of Ms. Gonzalez Sanchez. They claim that the 1985 Directive provides for the harmonisation of a minimum level of protection. Which would enable Member States to implement their legislation prior to the directive when it happens to be more favourable to victims.
The Spanish Government and the Commission back the opposite view: harmonisation is complete and Spain could do no other than abandon its 1984 legislation. This view is also that of the Advocate General.
History and contents of two Spanish laws and European directive
The 1984 legislation was adopted to swiftly compensate the many victims of a scandal that at the time had rocked public opinion. Spaniards believing they were buying olive oil were in fact offered processed rape-seed oil for industrial purposes by crooks. On the basis of that legislation, it was enough to demonstrate a causal link between the product and the injured person, made sick or contaminated. The 1994 law, on the other hand, and the directive impose an additional condition, more difficult to meet. The victim has to prove that the product, blood in this case, is defective. During the preparatory work for the 1985 directive, the proof of a product's defective nature was a concession made to industry which, generally-speaking, did not appreciate being rendered liable for the defective nature of a product without the fault of the manufacturer having to be proven, which had been the case thus far.
In the 1984 legislation, Ms. Gonzalez Sanchez could also have acted against the manufacturer, importer, distributor or seller which are financially and together responsible towards her. On the basis of the European directive and the law of 1994, she may only turn against the manufacturer, and may not take on the hospital which was only the distributor of the blood. The manufacturer of the batch of blood is Centro Communitaro de Transfusion del Principado de Asturias that Ms. Gonzalez Sanchez, based on the legislation of 1984, has not been placed into question.