Legea nr. 240/2004, Liability of Producers for Damage Caused by Defective Products (Directive 85/374/EEC)

Article 1 governs the legal relations between producers and persons injured by defective products put into circulation, civil liability for the damage they generate, and the right of action for repairing it. The Act was published in the Monitorul Oficial, Part I, number 552 of 22 June 2004. Article 17(1) brings the Act into force 30 days after its publication in the Monitorul Oficial. Article 17(1) brings Article 2(1)(a)(4), Article 2(1)(c)(3) and Article 14 into force on 1 January 2007.

The text was republished under Article V(k) of Title III of Law 363/2007. The Act states that it transposes Directive 85/374/EEC as amended by Directive 1999/34/EC. Article 2(1)(a)(1) counts as producer the manufacturer of the finished product, of a raw material or of a component part. Article 2(1)(a)(2) also counts as producer anyone who presents itself as producer by putting its name, trade mark or another distinguishing sign on the product.

Article 2(1)(a)(4) also counts as producer any person who imports a product from the European Union for sale, rental, purchase or another form of disposal in the course of its own commercial activity. Article 2(1)(a)(5) treats every supplier as the producer where the producer cannot be identified, unless the supplier gives the injured consumer, within a reasonable time, the identity of the producer or of the person who supplied the product.

Article 2(1)(b) defines a product as any movable good, even where it is incorporated in another movable or immovable good, and treats electricity as a product. Article 2(1)(c)(1) covers damage caused by death or by injury to the bodily integrity or health of a person.

Article 2(1)(c)(3) also covers damage to or destruction of a thing other than the defective product, where the thing is normally meant for private use or consumption, the injured person used it for personal use or consumption, and its value exceeds the lei equivalent of EUR 500.

Article 2(1)(d) makes a product defective if it does not offer the safety a person is entitled to expect, taking account of all the circumstances, including the presentation of the product, its foreseeable uses and the date it was put into circulation. Article 2(2) provides that a product is not defective only because a similar improved product was later put into circulation. Article 2(3) leaves in place the legal provisions on moral damages.

Article 3 makes the producer liable for present and future damage caused by the defect of its product. Article 4 does not limit the producer's liability where the damage results from both the defect and the act or omission of a third person. Article 5 makes several persons who are liable for the same damage jointly and severally liable. Article 6 requires the injured person to prove the damage, the defect and the causal link between them.

Article 7(1)(a) exonerates the producer who proves that it was not the one who put the product into circulation. Article 7(1)(b) also exonerates the producer who proves that the defect did not exist when the product was put into circulation or arose later from causes not attributable to the producer.

Article 7(1)(c) also exonerates the producer who proves that the product was not made for sale or any other form of distribution for an economic purpose and was not made or distributed in the course of its professional activity. Article 7(1)(d) also exonerates the producer who proves that the defect is due to compliance with mandatory conditions imposed by regulations of the competent authorities.

Article 7(1)(e) keeps the development-risk defense: the producer is exonerated where the state of scientific and technical knowledge when the product was put into circulation did not allow the defect to be detected. Article 7(1)(f) also exonerates the producer where the defect is due to the consumer's failure to follow the instructions for use supplied with the product, shown by a specialist technical expert report.

Article 7(2) exonerates the producer of a component who proves that the defect is attributable to the faulty design of the assembly it was fitted into or to the instructions of the producer of the consumer product. Article 8 lets the competent court limit or remove the producer's liability where the damage is caused both by the defect and by the fault of the injured person.

Article 9(1) leaves the injured person free to claim damages under contractual or tort liability or another special liability regime. Article 10 makes any contractual clause limiting or excluding the producer's liability absolutely null. Article 11 sets a three-year limitation period, running from the day the claimant knew or should have known of the damage, the defect and the identity of the producer.

Article 11 also bars an action brought more than 10 years after the producer put the product into circulation. Article 15 disapplies the Act to damage generated by products put into circulation before it entered into force, and to damage resulting from nuclear accidents.