Opinion of the Advocate-General
1. The subject of this Opinion is an action brought by the Commission under Article 169 of the Treaty against the United Kingdom for failure on the latter's part properly to transpose Article 7(e) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (1) (the `Directive').
Relevant legislation and procedure
2. As stated in the first recital in the preamble, the Directive sets out to eliminate the existing divergences between national product liability laws, which `may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property'.
Under Article 1 of the Directive, `The producer shall be liable for damage caused by a defect in his product'. Article 4 goes on to provide that `The injured person shall be required to prove the damage, the defect and the causal relationship between defect and damage', whilst Article 6(1) specifies that `A product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including: (a) the presentation of the product; (b) the use to which it could reasonably be expected that the product would be put; (c) the time when the product was put into circulation.' Article 6 goes on to provide that `A product shall not be considered defective for the sole reason that a better product is subsequently put into circulation.'
The defences to a product liability claim against a producer are set out in Article 7, which provides that `The producer shall not be liable as a result of this Directive if he proves: (a) that he did not put the product into circulation; or (b) that, having regard to the circumstances, it is probable that the defect which caused the damage did not exist at the time when the product was put into circulation by him or that this defect came into being afterwards; or (c) that the product was neither manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distributed by him in the course of his business; or (d) that the defect is due to compliance of the product with mandatory regulations issued by the public authorities; or (e) that the state of scientific and technical knowledge at the time when he put the product into circulation was not such as to enable the existence of the defect to be discovered; or (f) in the case of a manufacturer of a component, that the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.'
3. Under Article 19, the Directive had to be implemented by 30 July 1988. The United Kingdom did so by Part I of the Consumer Protection Act 1987 (`the Act'), which came into force on 1 March 1988. Section 1(1) of the Act is worded as follows: `This Part shall have effect for the purpose of making such provision as is necessary to comply with the product liability Directive and shall be construed accordingly'. Section 4(1)(e), which is intended to implement Article 7(e) of the Directive, provides that it is a defence for the producer to show that `that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control'.
4. Taking the view that the Act did not properly transpose the Directive in various respects, the Commission initiated infringement proceedings against the United Kingdom under Article 169 of the Treaty by sending a letter before action on 26 April 1989. By letter dated 19 July 1989, the United Kingdom denied the Commission's allegations, arguing that, although it was worded differently, the national legislation in question correctly transposed the Directive.
On 2 July 1990 the Commission issued a reasoned opinion, confirming its original criticisms. For its part, the United Kingdom reiterated its objections in a letter dated 4 October 1990 replying to the reasoned opinion.
5. In view of the United Kingdom's arguments and of section 1(1) of the Act, under which the relevant provisions are to be construed in accordance with the Directive, the Commission considered that five of the six grounds raised in the pre-litigation procedure should be abandoned.
In contrast, it took the view that the complaint relating to section 4(1)(e) of the Act, purportedly implementing Article 7(e) of the Directive, was justified, and brought an action for a declaration that it did not correctly implement that provision.
Substance
6. The Commission submits that the very wording of section 4(1)(e) of the Act shows that it is incompatible with Article 7(e) of the Directive. Whereas the test in Article 7(e) is objective in that it is based on the `state of scientific and technical knowledge' and makes no reference to the ability of the producer or of another producer of similar products to discover the defect, the national provision calls for a subjective assessment in that it places the emphasis on the conduct of a reasonable producer.
In that way, the national provision has the effect of transforming the strict or no-fault liability introduced by Article 1 of the Directive into liability founded on negligence on the part of the producer.
7. The Commission considers that the chief consequence of the change in the system of liability embodied in the Directive will be procedural: in order to prove that neither he nor another producer of similar products could have discovered the defect at the material time, it is sufficient for the producer of a defective product to show that he was not guilty of any negligence and that he took all the standard precautions in use in the industry in question.
Consequently, the burden of proof is lighter than that imposed by the Directive, under which the producer's conduct is irrelevant and he has a defence to liability only if (it is proved that) the state of scientific and technical knowledge at the material time was such that it was impossible to discover the defect.
8. In the Commission's view, the manifest, irremediable incompatibility of the wording of the Act with that of the Directive cannot be cured even by section 1(1) of the Act - even though it requires the relevant provisions to be construed in accordance with the Directive -, even less, by the more general canons of interpretation laid down by section 2(4) of the European Communities Act 1972 and the case-law of the House of Lords, which may be used only where the wording of the relevant provisions is ambiguous and open to different interpretations and therefore not in this case.
In support of its submissions, the Commission has further claimed that in the debates in the House of Lords several peers expressed doubts whether section 4(1)(e) of the Act was compatible with the Directive; similar concerns have been raised by the most authoritative British learned authors.
9. Disagreeing with the Commission, the Government of the United Kingdom considers that the test laid down by the Act is not substantively different from that laid down by the Directive, and denies that it was intended by means of the Act to adopt a system of liability based on negligence on the part of the producer.
In the United Kingdom's view, the Commission's view is based on an erroneous interpretation of the relevant provisions of the Directive and the Act.
10. As far as the Directive is concerned, the defendant Government submits that the very fact of asserting that the Directive does not refer to the producer's ability to discover the defect appears to imply that the defence in question cannot succeed unless the producer can prove that there is no-one in the world with the knowledge necessary to identify the defect. Construed thus, Article 7(e) of the Directive would in fact prove to be inapplicable.
In contrast, the United Kingdom considers that the only sensible meaning that can be given to the Community provision is that encapsulated in section 4(1)(e) of the Act: the capacity of the producer in question (or of producers of similar products) constitutes an objective, abstract notion, referring not to what the producer actually knew or did not know, but to what he could and/or should have known in the light of the fund of scientific and technical knowledge available at the material time. This is confirmed moreover - the United Kingdom Government asserts - by the seventh recital in the preamble to the Directive, which, in stating that `a fair apportionment of risk between the injured person and the producer implies that the producer should be able to free himself from liability if he furnishes proof as to the existence of certain exonerating circumstances', shows an intention on the part of the Community legislator to afford the producer real, effective defences, the effectiveness of which would be destroyed if the Commission's interpretation were to be accepted.
11. Turning to section 4(1)(e) of the Act, the United Kingdom Government argues in the first place that the Commission has not succeeded in showing, as it ought to have done, that the provision at issue is capable of bearing only one meaning which is absolutely incompatible with the Directive.
In fact, the Government maintains, by laying down an objective test - that is, one that can be objectively verified - for the producer's defence against liability, section 4(1)(e) is worded in such a way as to be fully consistent with the Directive, and the fact that that provision differs linguistically from the Community provision has no bearing from this point of view. Neither can it be claimed that, unlike the Directive, the Act introduces a system of liability based on negligence: if that were the case, the burden of proving that the producer had been negligent would lie with the injured party, whereas under section 4(1)(e) it is for the producer wishing to raise a defence against liability to prove that, in the light of the available knowledge, he was not capable of discovering the defect.
Lastly, the United Kingdom denies that useful material for interpreting the Act may be gleaned from the debates in the House of Lords. It makes similar observations with regard to the assessments of the opinions of learned authors cited by the Commission. What is more, the purport of those opinions is in some respects different from that attributed to them in the application.
12. At the hearing, the United Kingdom Government stressed that the Court should be called upon to interpret Community law against a background of specific circumstances and by reference to a clearly defined fact situation; this is not the case here. Since there are no decisions of national courts interpreting the Act, the Court is being called upon to rule in the abstract and essentially hypothetically on whether the Act itself is in conformity with the Directive, with the result that it cannot provide a useful interpretation of the relevant Community legislation.
Those remarks seem in fact to be suggesting that the Commission's application is inadmissible in view of the absence of any national practice on the point at issue.
13. In this connection, I consider that I should first clear the ground of any doubt about the possibility of the lack of any national case-law on the point at issue operating in any way so as to preclude or stand in the way of the institution of proceedings under Article 169.
The Commission may indeed bring an action under Article 169 against a Member State on the mere ground that the wording of the national implementing provision is at odds with the formulation of the Community provision to be implemented. (2) It goes without saying, of course, that it is not enough merely to infer from the differing wording of the two provisions that the State is in breach of its obligations, it being undisputed that in order to implement a directive it is not necessarily a requirement that its provisions should be reproduced verbatim. (3)
14. In any event, given that in the pre-litigation stage the Commission alleged against the United Kingdom that the national provision at issue was absolutely and irremediably at odds with the corresponding provision of the Directive, even asserting that the British courts could in no case interpret it consistently with the Directive, it seems to me that the settled case-law to the effect that ambiguous national legislation does not constitute exact fulfilment of the obligation to implement a directive is irrelevant, even though it has been raised by the Commission in the proceedings before the Court. In contrast, what is required in this case is for the Commission to prove the alleged infringement as challenged in the pre-litigation stage; that is to say, it should show that the wording of the national provision is capable of only one interpretation which is manifestly and, I would say, unshakeably different from the Community provision and hence incompatible with it.
In the final analysis, what this application - as defined in the pre-litigation stage - is concerned with is not the possible ambiguity of the national implementing provision, but its irremediable inconsistency with the Community provision which it purports to implement. Hence, it is within these limits that the Commission's application must be considered.
15. Having said this, I consider it appropriate, given that the Directive is before the Court for the first time, to summarize its essential features in order to identify the exact interpretation of the provision at issue. It will subsequently be possible in the light of that interpretation to determine whether the national provision in question does not diverge substantively from the Community provision or whether, simply on the basis of its wording, it must be inferred that it is irremediably in conflict with the Directive.
16. The producer's liability for marketing defective products has been in the forefront of topics considered in learned writings concerned with civil liability, above all in the most recent decades. The chief reason for this is that it has constituted a test bench at the systematic level for moving from a system of imposing liability for unlawful acts and omissions solely on the basis of negligence to a system of strict liability, which is more consonant with the requirements of protecting injured parties, as part of a recasting of the rules of civil liability in terms no longer only of sanctions but also, if not chiefly, in terms of compensation. (4)
The tendency which I have just described has been stimulated moreover by the growth of industrial activity. (5) With the ever increasing complexity of manufacturing processes, the risks associated with product defects multiplied and became difficult to avoid and it became clear that the system of liability founded on the producer's negligence was inappropriate to secure adequate protection for the consumer. Albeit injured by a defective product, consumers were in fact - and too often - deprived of an effective remedy, since it proved very difficult procedurally to prove negligence on the part of the producer, that is to say, that he had failed to take all appropriate steps to avoid the defect arising.
Seen from this perspective it can be readily appreciated why it was in the United States, owing to the scale of industrial growth in that country, that the theoretical premisses of a system of producer liability uncoupled from any requirement for negligence were first worked out, starting in the 1960s. (6) Those premisses may be summarized as follows: (7) (a) the producer's greater contractual and economic power compared with the consumer and the more effective deterrent function performed by the system of strict liability as against liability for negligence; (b) the principle of the distribution of risks within a particular social organization through recourse to insurance: in other words, internalization of the costs arising out of harmful acts or omissions on the part of the producer; (c) reduction of so-called secondary and tertiary administrative costs and achievement of major social benefits as a result of the introduction of a system of strict liability on the part of the producer.
17. At Community level, following a number of drafts submitted in the late 1970s, the Directive was successfully adopted in 1985, although its final wording differs considerable from the text of the Commission's original proposal. (8)
The Commission's proposal, drawing its inspiration from the US model, provided for a system of no-fault liability on the part of the producer, which, on the one hand, was regarded as the most suitable means of securing adequate protection for the consumer (fourth recital) and, on the other, was justified by the fact that the producer is the ideal centre to which to impute the damage, since he may `include the expenditure which he incurs to cover this liability in his production costs when calculating the price and therefore divide it among all consumers of products which are of the same type but free from defects' (fifth recital).
18. The type of liability outlined in the Commission's proposal, however, went beyond the system of strict liability as described earlier, being one of absolute liability in that the producer could put forward no evidence in rebuttal. Article 1 of the proposal provided that `The producer of an article shall be liable for damage caused by a defect in the article, whether or not he knew or could have known of the defect. The producer shall be liable even if the article could not have been regarded as defective in the light of the scientific and technological development at the time when he put the article into circulation.'
This precluded the producer from raising the `state of the art' defence whereby he may avoid liability if he proves that the state of scientific and technical knowledge at the time when the product was put into circulation was not yet such as to enable the product in question to be regarded as defective. In other words, the producer was made to shoulder also `development risks', that is to say, risks present in production sectors in which an advance in technological and scientific knowledge may make a product appear defective ex post, whereas it was not regarded as such as the time when it was manufactured. (9)
19. In contrast, the Directive as it was adopted by the Council opted for a system of strict liability which was no longer absolute, but limited, in deference to a principle of the fair apportionment of risk between the injured person and the producer, the latter having to bear only quantifiable risks, but not development risks which are, by their nature, unquantifiable. (10) Under the Directive, therefore, in order for the producer to be held liable for defects in the product, the injured party is required to prove the damage, the defect in the product and the causal relationship between defect and damage, but not negligence on the part of the producer.
The producer, however, may exonerate himself from liability by proving that the `state of the art' at the time when he put the product into circulation was not such as to cause the product to be regarded as defective. This is what Article 7(e) of the Directive provides. (11)
20. It should first be observed that, since that provision refers solely to the `scientific and technical knowledge' at the time when the product was marketed, it is not concerned with the practices and safety standards in use in the industrial sector in which the producer is operating. In other words, it has no bearing on the exclusion of the manufacturer from liability that no-one in that particular class of manufacturer takes the measures necessary to eliminate the defect or prevent it from arising if such measures are capable of being adopted on the basis of the available knowledge.
Other matters which likewise are to be regarded as falling outside the scope of Article 7(e) are aspects relating to the practicability and expense of measures suitable for eliminating the defect from the product. Neither, from this point of view, can the fact that the producer did not appraise himself of the state of scientific and technical knowledge or does not keep up to date with developments in this area as disclosed in the specialist literature, be posited as having any relevance for the purposes of excluding liability on his part. I consider, in fact, that the producer's conduct should be assessed using the yardstick of the knowledge of an expert in the sector. (12)
21. Some additional considerations need to be explored, however, in order to tie down the concept `state of knowledge'.
The progress of scientific culture does not develop linearly in so far as new studies and new discoveries may initially be criticized and regarded as unreliable by most of the scientific community, yet subsequently after the passage of time undergo an opposite process of `beatification' whereby they are virtually unanimously endorsed. It is therefore quite possible that at the time when a given product is marketed, there will be isolated opinions to the effect that it is defective, whilst most academics do not take that view. The problem at this juncture is to determine whether in such a situation, that is to say, where there is a risk that is not certain and will be agreed to exist by all only ex post, the producer may still rely on the defence provided for in Article 7(e) of the Directive.
In my view, the answer to this question must be in the negative. In other words, the state of scientific knowledge cannot be identified with the views expressed by the majority of learned opinion, but with the most advanced level of research which has been carried out at a given time.
22. That interpretation, which coincides with that suggested by the Commission at the hearing with the aid of a number of very pertinent examples, is the closest to the ratio legis of the Community rules: the producer has to bear the foreseeable risks, against which he can protect himself by taking either preventive measures by stepping up experimentation and research investment or measures to cover himself by taking out civil liability insurance against any damage caused by defects in the product.
Where in the whole gamut of scientific opinion at a particular time there is also one isolated opinion (which, as the history of science shows, might become with the passage of time opinio communis) as to the potentially defective and/or hazardous nature of the product, the manufacturer is no longer faced with an unforeseeable risk, since, as such, it is outside the scope of the rules imposed by the Directive.
23. The aspect which I have just been discussing is closely linked with the question of the availability of scientific and technical knowledge in the sense of the accessibility of the sum of knowledge at a given time to interested persons. It is undeniable that the circulation of information is affected by objective factors, such as, for example, its place of origin, the language in which it is given and the circulation of the journals in which it is published.
To be plain, there exist quite major differences in point of the speed in which it gets into circulation and the scale of its dissemination between a study of a researcher in a university in the United States published in an international English-language international journal and, to take an example given by the Commission, similar research carried out by an academic in Manchuria published in a local scientific journal in Chinese, which does not go outside the boundaries of the region.
24. In such a situation, it would be unrealistic and, I would say, unreasonable to take the view that the study published in Chinese has the same chances as the other of being known to a European product manufacturer. So, I do not consider that in such a case a producer could be held liable on the ground that at the time at which he put the product into circulation the brilliant Asian researcher had discovered the defect in it. (13)
More generally, the `state of knowledge' must be construed so as to include all data in the information circuit of the scientific community as a whole, bearing in mind, however, on the basis of a reasonableness test the actual opportunities for the information to circulate.
25. Having thus identified the scope of the Community provision, I consider that I am unable to share the Commission's proposition that there is an irremediable conflict between it and the national provision at issue. Indeed, there is no denying that the wording of section 4(1)(e) of the Act contains an element of potential ambiguity: in so far as it refers to what might be expected of the producer, it could be interpreted more broadly that it should.
Notwithstanding this, I do not consider that the reference to the `ability of the producer', despite its general nature, may or even must (necessarily) authorize interpretations contrary to the rationale and the aims of the Directive.
26. In the first place, consideration of the producer is central not only to the rules of the Directive taken as whole, but also to Article 7(e), which, although it does not mention him, is aimed at the producer himself, as the person having to discharge the burden of proof in order to avoid incurring liability. From this angle, the provision of the Act merely expresses in a clear way a concept which is implicit in the Community provision.
Secondly, the reference contained in the Act to the producer's ability to discover the defect is not sufficient to make the test which it lays down a subjective one. That reference can certainly be regarded, as the United Kingdom has argued, as a objectively verifiable and assessable parameter, which is in no way influenced by consideration of the actual subjective knowledge of the producer or by his organizational and economic requirements. By virtue of that parameter, it must therefore be proved, in order to exclude liability on the part of the producer, that it was impossible, in the light of the most advanced scientific and technical knowledge objectively and reasonably obtainable and available, to consider that the product was defective.
27. In so far as the disputed provision of the Act is interpreted and applied by the national courts in this way, the Commission's concerns that the defence in question will be made unduly subjective, resulting in the substantial transformation of the system of liability introduced by the Directive into negligence liability, are therefore unfounded.
From that point of view, moreover, I can agree with the United Kingdom's argument that an essential requirement for a system of liability based on negligence is lacking in the Act, namely the consumer's having to show that the producer was `negligent'. Under Section 4(1)(e) of the Act it is the manufacturer seeking to rely on the state of the art defence who has to discharge the burden of proof.
28. I would add that neither the rule of interpretation laid down by section 1 of the Act requiring national courts to interpret its provisions in conformity with the Directive nor the similar interpretative obligations of general scope imposed on the British courts by the European Communities Act 1972 and constantly stressed by the case-law of the House of Lords (14) seem to me to be irrelevant as the Commission claims.
In contrast, it does not seem possible to derive sufficient evidence to refute the conclusion reached in this opinion from the parliamentary debates mentioned by the Commission. At the most, those debates show concern about any excessive broadening of the scope of the state of the art defence as a result of the aforementioned reference to the ability of the producer. Yet the existence of such a risk cannot be regarded as sufficient proof for finding the failure to fulfil obligations asserted by the Commission.
29. This conclusion is confirmed, moreover, by settled case-law of the Court according to which the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts. (15) It clearly follows that it would have been much wiser and much more appropriate for the Commission to have waited until the Act was applied by the national courts before taking action against the United Kingdom for incorrectly implementing the Directive. Instead, as the infringement proceedings have been brought by the Commission, they end up by appearing overhasty, to say the least.
In the final analysis, I consider that I must agree with the United Kingdom and find that the Commission has failed to show that section 4(1)(e) of the Act does not correctly implement Article 7(e) of the Directive.
30. Since, on this view, the Commission is unsuccessful, it must be ordered to pay the costs.$
31. In the light of the foregoing considerations, I therefore propose that the Court should:
(1) dismiss the application;
(2) order the Commission to pay the costs.
(1) - OJ 1985 L 210, p. 29.
(2) - In answer to a specific question from myself on this point, the United Kingdom Government itself expressly acknowledged that the lack of any national case-law inconsistent with the Directive had no bearing on the admissibility of the Commission's application.
(3) - See, for example, Case C-71/92 Commission v Spain [1993] ECR I-5923, paragraph 23.
(4) - See to this effect the pertinent observations of Ponzanelli, La responsabilità civile. Profili di diritto comparato, Bologna, 1992, p. 107.
(5) - Cf. Priest, La scoperta della responsabilità d'impresa: una storia critica delle origini intellettuali del moderno sistema di responsabilità civile, in Responsabilità Civile, 1985, p. 275 et seq.
(6) - The doctrine of objective or, to use the English term, strict liability originates in the United States in a concurring opinion of Judge Roger Traynor in Escola v Coca Cola Bottling Co., 24 Cal. 2d 453, 461 P 2 d 436 (1944) to the effect that a producer had to be held liable if, in placing a product on the market, he knew that it would be used without inspection and a defect in the product caused injury. The rationale is that the producer, unlike a member of the public, can protect himself against the occurrence of risks and take out insurance, thus distributing the cost amongst consumers. In defining the rules of civil liability, the California Supreme Court accepted Judge Traynor's view in Greenman v Yuba Power Products Inc., 59 Cal 2 d 57, 377 P 2 d 897 (1963), when it held the defendant manufacturer strictly liable for injuries caused by a defect in a product. This principle was subsequently taken up in § 402A of the Restatement (Second) of Torts, which provides that the seller should be liable vis-à-vis the consumer for marketing `unreasonably dangerous' defective products. The `unreasonably dangerous' requirement was rejected, however, by the California Supreme Court in Cronin v J.B.E. Olson Corp., 8 Cal. 3 d 121, 501, P 2 d 1153 (1972) on the ground that it was `something very like' negligence: it was sufficient to show that the defect caused the injury in order for the manufacturer to incur liability. It should be noted that since the publication of § 402A systems of strict liability have been adopted in most of the United States. For a summary of the subject in the vast collection of US learned writings, see Shapo, The law of products liability, Boston - New York 1987.
(7) - See Ponzanelli, cited in footnote 4, pp. 115 and 116.
(8) - OJ 1976 C 241, p. 9.
(9) - In this connection, it is worth pointing out that in the United States the case-law showed a propensity for absolute liability on the part of the producer, especially in the pharmaceuticals sector. However, the `indiscriminate expansion of substantive tort liability' resulting from this case-law, as a result of which there was held to be liability in every case whatever the cost and the state of the art defence was rejected, brought about a crisis on the insurance market which was so serious that some economic activities could no longer obtain insurance cover. Owing to this, there have recently been signs of a reversal of this trend both in the case-law and in legislation and a return to the rules of strict, rather than absolute, liability: see Priest's observations, The current insurance crisis and modern tort law, in 96 Yale Law Journal 1589 (1987); ibid., La controrivoluzione nel diritto di reponsabilità da prodotti negli Stati Uniti di America, in Foro italiano 1989, IV, p. 119 et seq. In the latter article, the author gives a warning to legal circles in Europe which it is well to bear in mind: `The California Supreme Court in Brown and the new legislation of New Jersey have begun to reappraise the premisses of the rule of strict liability in the products liability sector. It will be important to see whether, in giving practical implementation to the Community Directive of 25 July 1985, adopting the standard of strict liability twenty-five years after it was introduced in the United States, the European States will accept the original theoretical premisses of that system which subsequently caused a crisis in the USA or whether, on the other hand, they will accept the counter-revolution which has just begun' [translation].
(10) - This is evidenced by Article 15(b) of the Directive, which allows Member States to derogate from the provision on development risks by introducing stricter legislative provisions.
(11) - As regards the difficult gestation of this provision, see Ghestin, La directive communautaire du 25 juillet 1985 sur la responsabilité du fait des produits défectueux, in Dalloz, 1986, Chron., p. 135 et seq.
(12) - For example, if a chemist or a pharmacologist has to keep up to date with the characteristics of a given substance, similar knowledge will be required for present purposes of an industrialist producing pharmaceuticals containing the same substance.
(13) - Contrary to the Commission's submission at the hearing - which moreover contradicted what it initially said -, I therefore do not consider it enough in order to defeat the defence provided for in Article 7(e) of the Directive to show that there was one person, irrespective of his country and language, who was capable of discovering the defect in the product.
(14) - On this point, it is scarcely necessary to point out that the Court has consistently held that the national courts are obliged in any event to interpret domestic legislation consistently with the Directive : see Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8.
(15) - See in particular Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, paragraph 36, and Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas and Others [1992] ECR I-6577, paragraph 39.
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