SPAIN Law and Practice Contributed by: Xavier Moliner and Juan Martínez, Faus Moliner
The most notorious criminal case in this regard was the rapeseed oil case, in which more than 30 industri - alists were prosecuted during the late 1980s for their participation in the commercialisation of a suppos - edly edible oil that was adulterated with rapeseed oil (for industrial use and prohibited for foodstuffs). The rapeseed oil contained a toxic chemical substance that caused the death of more than 300 people and left more than 25,000 affected. In 1992, the Supreme Court sentenced the industrialists responsible to sig - nificant convictions of imprisonment and to payment of the correspondent compensation to the affected persons. Because of the large compensation, some of the convicted industrialists became, and were declared, insolvent. As a result, the affected persons started legal pro - ceedings against the Spanish state to also declare its pecuniary responsibility due to the negligence of its officials in the process. The judicial battle ended in 1997 when the Supreme Court sentenced the state as a subsidiary liable party to pay compensation of more than 500 million pesetas to those affected. 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law Liability Under RLD 1/2007 In Spain, the regime for general liability for defective products is established in RLD 1/2007, with Articles 128–146 setting the main rules on product liability. It is mainly a regime of non-absolute strict liability nature. Liability is deemed strict because the injured party is not required to prove fault or negligence on the part of the producer. However, it is not absolute, as the obligation to compensate arises only if the prod - uct alleged to have caused the damage is deemed “defective”. Under this regime, the “producer” of a defective prod - uct will be liable for any damage caused by death or by personal injuries, and/or for any damage to, or destruction of, any item of property other than the defective product itself, provided that the item of property is of a type ordinarily intended for private use or consumption and was used by the injured per -
son mainly for their own private use or consumption. It is the responsibility of the claimant to prove that the product was defective, that damage occurred and that there was a causal link between the defective product and the damage suffered. Under this regime of RLD 1/2007, a product is defec - tive when it does not offer the safety that could legiti - mately be expected, considering all circumstances and, especially, its presentation, the reasonably fore - seeable use of the product and the moment when the product was put into circulation. As established by the Spanish Supreme Court in its judgment 495/2018 of 14 September 2018, this concept of a “defective prod - uct” is a normative concept that must be interpreted in accordance with the criteria established by law. In this regard, simple modification of a product (eg, to introduce enhanced information on warnings, risks or side effects according to the latest available data) does not cause the product to be defective, since the defect definition makes it clear that “a product shall not be considered defective for the sole reason that such product is subsequently put into circulation in a more improved version”. Therefore, within the framework of the regime for product liability outlined in RLD 1/2007, a defect is defined as “the lack of safety that could legitimately be expected from the product”, based on the criterion of “legitimate safety expectations”. For the purposes of this regime, “producer” means: • the manufacturer or the importer in the EU of a finished product, any raw material, or a component part of a finished product; and/or • the “apparent producer” of the product – ie, any person who presents themselves as the producer of the product by putting their name, trade mark or other distinguishing feature along with the product, whether on the container, wrapping or any other protective or presentational component. The “producers” responsible for the same damage by application of this regime will be jointly and severally liable before the injured party. However, the one who responded to the injured party will have the right to file an action for recovery against the other respon -
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