Country:

Netherlands

Court:

HR 24 December 1993, NJ 1994, 214 (Broken top of bottle)

Topics:

Proof of the defect

Interpretation of national law conform directive

Article:

Art. 4

Facts:

The top of a lemonade bottle broke off when the barman in the canteen of a football-club tried to open it. The barman was injured and held the producer of the lemonade bottle liable. The producer denied that the bottle was defective and put forward that it was likely that the bottle had broken because of another cause, especially by using too much power. The accident took place in the autumn of 1988, a few months after the EC-Directive had to be implemented in Dutch law. The Dutch implementation Act only entered into force more than two years later.

Legal questions:

(1) Which facts are to be proven by the victim as regards the defect?

(2) Is the national court obliged to interpret national law in accordance with the EC-Directive as regards a product that was put into circulation after 30 July 1988 but before the national implementation Act entered into force?

Decisions:

(1) The Hoge Raad decided that the barman had to prove that he had opened the bottle in a normal way. If he succeeded to do so, it was up to the producer to prove that the bottle was nevertheless not defective.

(2) The decision does not make clear whether the court interpreted Dutch law in accordance with the EC-Directive. If the Hoge Raad did so, then it happened very implicitely.

Comments:

(1) Art. 4 of the Directive holds that the injured person has to prove the defect. However, he can not prove the defect by simply showing the broken bottle since the bottle could also have been broken because of wrongful conduct of the barman. But on the other hand it would be too burdensome to oblige the barman to prove the defect of the bottle itself, since this is in practice hardly possible. In this decision the Hoge Raad took an intermediate view. This decision can be seen as an application of the res ipsa loquitur-rule, a rule that is also applied in other European legal systems.