THE IMPORTANCE OF IDENTIFYING THE MANUFACTURER OR SUPPLIER OF THE PRODUCT

In its judgment no. 311/2026, of 25 February, the Spanish Supreme Court finds a procedural infringement and upholds an appeal on the merits, regarding the identification and liability of the manufacturer in a case involving a defective hip prosthesis.

In 2009 a hip prosthesis was implanted in a patient. In 2014, the Spanish authority ordered the withdrawal of the prostheses. In 2015 the patient had another surgery for the replacement of the prosthesis. In 2016 the patient brought a claim for damages against the distributor in Spain, as he did not know who the manufacturer was.

The Court of Appeal concluded that the manufacturer was perfectly identifiable from the documentation provided. However, the Supreme Court annuls that decision:

1.- The system of Article 138.2 of the Spanis Law (TRLGDCU) establishes the liability of the supplier or distributor, if the following requirements are met:

(i) the producer cannot be identified;

(ii) the injured party has made a claim against the supplier, and if the latter is not actually the producer, that supplier must indicate the identity of the manufacturer, the importer, or its own supplier;

(iii) the supplier has not provided this information within three months from receipt of the injured party’s request. This period is equivalent to the reasonable period of time under Directive 85/374/EEC, and was also set at three months in other countries such as Italy, Portugal and France.

2.- The Court concludes that the Court of Appeal’s conclusion is totally illogical, since the documentation provided indicated at least three distinct possible manufacturing companies, meaning the identification of the producer was not perfectly evident.

3.- The Court reiterates its doctrine (judgments 34/2020 and 448/2020, supported by the CJEU judgment of 2/12/2009), in that it is not sufficient to deny being the manufacturer. The supplier has the obligation to communicate to the victim or injured party, on its own initiative and diligently, the identity of the producer or of its own supplier.

4.- In this case, the distributor could have identified the manufacturer during the pre-litigation extrajudicial communications, but did not do so until it filed its defence before the Court, which is described as notoriously late.