SOURCES OF LAW AND THEIR EVOLUTION

LEGAL REGIMES APPLICABLE TO LIABILITY FOR DEFECTIVE PRODUCTS BEFORE THE IMPLEMENTATION OF DIRECTIVE 85/374/EEC IN SPAIN

Before the implementation in Spain of Directive 85/374/EEC, the problems relating to civil liability for damage caused by defective products were resolved by applying three possible sources of law: general rules of liability for breach of contract (arts 1486 ff CC and arts 1101 ff CC); general tort law rules (arts 1902 ff CC); and, from 1984 on, the provisions contained in Act 26/1984, of 19 July, the General Act for the Defence of Consumers and Users. The entry into force of the European Directive and its implementation in the 1994 Products Liability Act, which in 2007 was recast in arts 128–176 of Royal Legislative Decree 1/2007 of 16 November, Approving the Consolidated Text of the General Consumer and User Protection Act and Other Complementary Laws (TRLGDCU-2007), does not preclude the application of most of these rules, the compatibility of which recognises art 13 Directive and current art 128.2 TRLGDCU, according to which actions for damage arising from the Directive ‘do not affect the injured party's other rights to be compensated for damage, including pain and suffering, as a consequence of contractual liability, on the grounds of the lack of conformity of goods or services or any other cause of non-performance or defective performance of the contract, or of any non-contractual liability which may apply’. The only limitation is (as will be discussed infra no 09 ff) incompatibility between the rules laid down in the Directive and former arts 26–28 of Act 26/1984, establishing a special liability regime for damage caused by defective products, which was different from the regime provided for in the Directive. The ECJ recognised that these domestic provisions could not be applied after the entry into force of the European Directive in Spain (María Victoria González Sánchez v Medicina Asturiana SA (on this issue in more detail, see infra no 09 ff).