SPAIN Law and Practice Contributed by: Xavier Moliner and Juan Martínez, Faus Moliner
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 defec - tive products is established in RLD 1/2007, with Articles 128–146 setting the main rules on prod - uct 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 product alleged to have caused the damage is deemed “defective” . Under this regime, the “producer” of a defective product will be liable for any damage caused by death or by personal injuries, and/or any dam - age to, or destruction of, any item of property other than the defective product itself, provided that the item of property is of a type ordinar - ily intended for private use or consumption and was used by the injured person mainly for their own private use or consumption. It is the respon - sibility 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 defective when it does not offer the safety that could legitimately be expected, considering all circumstances and, especially, its presentation, the reasonably foreseeable 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 “defective product” is a normative concept that must be interpreted in accordance with the criteria estab - lished by law. In this regard, simple modification
of a product (eg, to introduce enhanced informa - tion on warnings, risks, or side effects according to the latest available data) does not cause the product to be defective, since the defect defi - nition 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 legiti- mately 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 fea - ture along with the product, whether on the container, wrapping or any other protective or presentational component. The “producers” responsible for the same dam - age 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 recov - ery against the other responsible “producers” , according to their participation in the damage. Where the “producer” of a product cannot be identified, each supplier of the product (ie, the distributor or the “retail” supplier) will be con - sidered as its “producer” , unless they inform the injured party of the identity of the “producer” or
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