SPAIN Law and Practice Contributed by: Xavier Moliner and Juan Martínez, Faus Moliner
This limitation period may be interrupted in accord - ance with the applicable rules of national law. On the other hand, the ten-year expiration period remains in force. Once this period has elapsed sub - sequent to the product being placed on the market, no claims for damages can be brought. However, this period is extended to 25 years for claims for dam - ages that become apparent after these ten years have elapsed due to the latency of the injury caused. Monetary liability limit Another important novelty is that the new Directive removes the possibility for member states to set an overall monetary limit of liability per product of the same kind with the same type of defect. Member states will also have to ensure that the liability of eco - nomic operators under the new Directive cannot be excluded or limited, vis-à-vis the injured party, by a contractual provision or by national law. 3.2 Future Policy in Product Liability and Product Safety The system for disclosure of evidence and presump - tions provided by the New EU Product Liability Direc - tive will lead to a major modification of the existing procedural rules in Spain on this matter. As pointed out in 2.7 Rules for Disclosure of Docu- ments in Product Liability Cases , Spanish civil law is based on the principle of the parties’ own produc - tion of evidence (ie, each litigant party must obtain and present its own evidence to support its claims in court proceedings), and no general discovery obliga - tion exists between the litigant parties – neither before court proceedings start nor as part of the pre-trial pro - cedures. However, to facilitate the claimant’s burden of proof in a complex product liability case, the New EU Product Liability Directive establishes the following measures on disclosure and presumptions. Disclosure of Evidence by the Parties A claimant who presents sufficient facts and evidence to support the plausibility of its claim may request that the courts order the defendant to disclose relevant evidence in their possession that the claimant consid - ers necessary to support their claim. The defendant may also make this request in relation to evidence
in the claimant’s possession, where the defendant presents sufficient proof of the need to access this evidence in order to defend the claim. The courts shall ensure that this disclosure of evidence between the parties is limited to what is necessary and proportionate, taking into account the legitimate interests of all persons concerned and, in particular, the protection of confidential information and trade secrets. This measure represents a significant innovation in the Spanish procedural system, which is based on the principle that each party must provide the evidence at its disposal, and only in very exceptional cases is one party allowed to request that the other produces The product shall be presumed to be defective if the defendant refuses to disclose or produce the evidence requested by the court. A defect shall also be pre - sumed when the claimant proves that: • the product does not meet the mandatory safety requirements laid down in the applicable regula - tions; and • the damage was caused by an obvious malfunction of the product during normal use. In addition, a causal link between the defect and the damage shall be presumed to exist when it has been established that the product is defective and the dam - age caused is compatible with the defect in question. Finally, the court may also presume a defect in the product, a causal link or both when, taking into account all the relevant circumstances of the case: • the court considers that the claimant faces exces - sive difficulties, due to technical or scientific com - plexity, in proving a defect in the product, a causal link or both; or • the claimant demonstrates that it is likely that the product is defective or that there is a causal link between the defect in the product and the damage, or both. documents in its possession. Presumptions of Evidence
252 CHAMBERS.COM
Powered by FlippingBook