Bad eggs, product liability and Case C-402/03

Two Danes bought some eggs from a retailer. The retailer in turn got them from the producer. Alas, the eggs were bad and and gave the two consumers salmonella poisoning. The consumers brought an action in tort against the retailer who then joined the producer in the proceedings.

The point that came up was whether the retailer could be strictly liable according to Council Directive 85/374/EEC of July 25th 1985 on the approximation of the laws, regulations and administrative provisions of the member States concerning liability for defective products.
Directive 85/374/EEC provides for strict liability of the producer for any loss and damage caused by a defect in goods he puts into circulation. However, Danish law, implementing the Directive, provided also that any intermediary, such as a retailer, could also be liable in lieu of a producer.

The Court held in its judgment in Case C-402/03 Skov Æg v. Bilka that an intermediary such as a retailer could not be strictly liable in lieu of a producer under Directive 85/374/EEC. The Court repeated that Directive 85/374/EEC brought about complete harmonization of liability for defective products and consequently, member States could not have a system of no fault or strict liability for defective products of persons other than those defined by the Directive itself. Nor could member States transfer the liability of the producer to other persons such as retailers.

But the Court did state that member States were free, under the Directive, to have a liability system in which a supplier or retailer was liable in negligence or for fault.

Two more general points came up.
The first concerned the legal value of a statement on the meaning of a provision in the minutes of the Council meeting held during the adoption process of the legislation. In this case, the Danish government sought to rely on a statement in the minutes of a Council meeting to support their submissions that the Directive should be interpreted in a particular manner. The Court recalled that where a statement recorded in the Council minutes is not referred to (or reflected) in the wording of the provision in issue, it cannot be used for the purpose of interpreting the provision (see inter alia Case C-375/98 Epson Europe).
The second was the temporal effect of a preliminary ruling of the Court of Justice. The Danish government and the injured persons asked the Court of Justice to limit the temporal effects of its judgment so that it would apply only from the time of its delivery. The Court denied the request. It stated that as a matter of principle, a judgment rendered in an Article 234 EC procedure clarifies and defines the meaning and scope of EC law as it should have been understood from the moment that the law entered into force. As a consequence, the law as interpreted by the Court of Justice must be applied by national courts to legal relationships that arose before the judgment was handed down in the Article 234 EC procedure. The Court also stated that it is only exceptionally that it will restrict for any person concerned the opportunity to rely on a provision of EC law that it has interpreted. Two conditions must be fulfilled before such a limitation can be imposed :

- Those concerned should have acted in good faith

- There should be a risk of serious difficulties

(see Case C-372/98 Cooke). In this case the Court of Justice found that no serious difficulties would arise if the temporal effects of the judgment were not limited.