EuGH · C-344/25 · 05.11.2026 · ECLI:EU:C:2026:939
Provisional text
JUDGMENT OF THE COURT (Sixth Chamber)
5 November 2026 (*)
( Reference for a preliminary ruling – Judicial cooperation in civil matters – Law applicable to non-contractual obligations – Regulation (EC) No 864/2007 – Article 5(1) – Product liability – Determination of the place where the product is marketed – Place of acquisition of the product from a distributor or of the delivery to the end customer by a carrier – Concept of ‘product’ – Component part of an end product )
In Case C‑344/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 8 April 2025, received at the Court on 21 May 2025, in the proceedings
EUROVO S.r.l.
v
Zimmerer Erben GmbH,
THE COURT (Sixth Chamber),
composed of F. Biltgen (Rapporteur), President of the First Chamber, acting as President of the Sixth Chamber, I. Ziemele, and M. Bošnjak, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: V. Di Bucci,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– EUROVO S.r.l., by T. Winter, Rechtsanwalt,
– the European Commission, by B. Ernst and S. Noë, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 5(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40; ‘the Rome II Regulation’).
2 The request has been made in proceedings between EUROVO S.r.l. (‘Eurovo’) and Zimmerer Erben GmbH, formerly Salmet-International GmbH, concerning the action for liability brought by Eurovo as a result of products manufactured by Zimmerer Erben.
Legal context
European Union law
The Rome II Regulation
3 Recitals 18 to 20 of the Rome II Regulation state:
‘(18) The general rule in this Regulation should be the lex loci damni provided for in Article 4(1). Article 4(2) should be seen as an exception to this general principle, creating a special connection where the parties have their habitual residence in the same country. Article 4(3) should be understood as an “escape clause” from Article 4(1) and (2), where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with another country.
(19) Specific rules should be laid down for special torts/delicts where the general rule does not allow a reasonable balance to be struck between the interests at stake.
(20) The conflict-of-law rule in matters of product liability should meet the objectives of fairly spreading the risks inherent in a modern high-technology society, protecting consumers’ health, stimulating innovation, securing undistorted competition and facilitating trade. Creation of a cascade system of connecting factors, together with a foreseeability clause, is a balanced solution in regard to these objectives. The first element to be taken into account is the law of the country in which the person sustaining the damage had his or her habitual residence when the damage occurred, if the product was marketed in that country. The other elements of the cascade are triggered if the product was not marketed in that country, without prejudice to Article 4(2) and to the possibility of a manifestly closer connection to another country. The other elements of the cascade are triggered if the product was not marketed in that country, without prejudice to Article 4(2) and to the possibility of a manifestly closer connection to another country.’
4 Chapter II of that regulation, entitled ‘Torts/Delicts’, contains, inter alia, Articles 4 and 5 thereof.
5 Article 4 of that regulation reads as follows:
‘1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining the damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.’
6 Article 5 of the Rome II Regulation provides:
‘1. Without prejudice to Article 4(2), the law applicable to a non-contractual obligation arising out of damage caused by a product shall be:
(a) the law of the country in which the person sustaining the damage had his or her habitual residence when the damage occurred, if the product was marketed in that country; or, failing that,
(b) the law of the country in which the product was acquired, if the product was marketed in that country; or, failing that,
(c) the law of the country in which the damage occurred, if the product was marketed in that country.
However, the law applicable shall be the law of the country in which the person claimed to be liable is habitually resident if he or she could not reasonably foresee the marketing of the product, or a product of the same type, in the country the law of which is applicable under (a), (b) or (c).
2. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraph 1, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.’
Directive 85/374/EEC
7 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 (OJ 1985 L 210, p. 29), as amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 (OJ 1999 L 141, p. 20) (‘Directive 85/374’), sets out, in Article 2 thereof:
‘For the purpose of this Directive, “product” means all movables even if incorporated into another movable or into an immovable. …’
8 Article 7 of that directive reads as follows:
‘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.’
9 Article 11 of that directive provides:
‘Member States shall provide in their legislation that the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a period of 10 years from the date on which the producer put into circulation the actual product which caused the damage, unless the injured person has in the meantime instituted proceedings against the producer.’
German law
10 Paragraph 823(1) of the Bürgerliches Gesetzbuch (German Civil Code) provides:
‘Any person who, with intent or through negligence, unlawfully injures the life, body, health, freedom, property or other right of another person shall be obliged to compensate that other person for the resulting damage.’
11 Article 1(1) of the Gesetz über die Haftung für fehlerhafte Produkte (Produkthaftungsgesetz – ProdHaftG) (Law on liability for defective products (Law on product liability – ProdHaftG)) of 15 December 1989 (BGBI. 1989 I, p. 2198) reads as follows:
‘If, owing to a defect in a product, a person dies, is injured or his or her health is impaired or there is damage to an item of property, the producer of the product shall compensate the injured person for the damage which arises as a result thereof. In the case of damage to an item of property, this shall apply only if an item of property other than the defective product is damaged and this other item of property is of a type ordinarily intended for private use or consumption and was used by the injured person mainly for private use or consumption.’
12 Paragraph 4(1) of that law provides:
‘A manufacturer within the meaning of this Law is any person who has manufactured the end product, a raw material or a component part. Any person who represents himself or herself as a manufacturer by affixing his or her name, his or her trade mark or other distinctive sign shall also be regarded as a manufacturer.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
13 Eurovo, which has its registered office in Italy, claims, under Italian law, damages based on product liability in connection with defects in six Salmet battery cages, which were designed and manufactured by Zimmerer Erben, which has its registered office in Germany.
14 The parties to the main proceedings, one of which is active in the production, processing and marketing of foodstuffs, more specifically eggs and egg products, and the other distributes articles for the processing industry, are not linked by a contractual relationship.
15 The defendant in the main proceedings sold, between 2009 and 2010, five ‘Salmet’ battery cages to the Dutch undertaking VerstOvo BV and one ‘Salmet’ battery cage to the French company Ovonor SAS, which then resold it to VerstOvo. As regards the installation of those battery cages, it was agreed that they would be loaded in Germany, that the total value of the contract did not include the installation of those battery cages, but that a technician of the defendant in the main proceedings could be made available to the acquiring company. VerstOvo resold four of those six battery cages to various Italian undertakings, which concluded lease agreements with the applicant in the main proceedings for a complete aviary system for laying hens. The other two battery cages were sold to another Italian undertaking, which later merged with the applicant in the main proceedings.
16 The installation of the aviary systems was carried out between July and December 2010 at the premises of the applicant in the main proceedings in Codigoro (Italy). The aviaries were delivered, at the expense of VerstOvo, from the registered office of the defendant in the main proceedings in Germany directly to the production site of the applicant in the main proceedings in Italy. The assembly was carried out by employees of VerstOvo with the assistance of some of the employees of the defendant in the main proceedings.
17 On account of technical problems which developed with regard to the aviary systems following their assembly, VerstOvo initiated, in May 2011, against the defendant in the main proceedings, independent evidence-taking proceedings before the Tribunale di Ferrara (District Court, Ferrara, Italy) under Italian law. Between September 2013 and January 2014, the aviary systems were repaired.
18 After bringing, during 2014, an action for damages before the Tribunale di Ferrara (District Court, Ferrara), which declared that it lacked international jurisdiction, the applicant in the main proceedings brought an action against the defendant in the main proceedings before the Landgericht Darmstadt (Regional Court, Darmstadt, Germany), alleging that the defendant was liable for design and structural defects and malfunctions in the aviary systems.
19 The applicant in the main proceedings submits that Italian law is applicable to the dispute in the main proceedings pursuant to point (c) of the first subparagraph of Article 5(1) of the Rome II Regulation, since the installations at issue were marketed in Italy. Moreover, the applicant in the main proceedings claims that it had already operated systems of the same type produced by the defendant in the main proceedings in another establishment in Italy. According to that applicant, under Italian law, it is for the defendant in the main proceedings to compensate for the unlawful damage caused by its negligent actions.
20 By judgment of 1 July 2020, the Landgericht Darmstadt (Regional Court, Darmstadt) dismissed the action brought by the applicant in the main proceedings, which brought an appeal against that judgment before the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany), which, by judgment of 17 December 2021, dismissed that appeal. After finding that, according to the second subparagraph of Article 5(1) of the Rome II Regulation, the law applicable in the case was German law, that court held that, pursuant to the applicable German law, the applicant in the main proceedings had no right to damages against the defendant in the main proceedings.
21 In its appeal on a point of law, brought before the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court, the applicant in the main proceedings repeats its claims.
22 The referring court considers that, in determining the legislation applicable to the dispute in the main proceedings, it is necessary to interpret Article 5(1) of the Rome II Regulation, and more specifically the concept of ‘marketing’ in that provision.
23 It recalls in that regard that, if the parties to the main proceedings do not both have their habitual residence in the same Member State, the applicable law is determined by the cascade system of connecting factors provided for in points (a) to (c) of the first subparagraph of Article 5(1) of the Rome II Regulation, each of which points refers to the concept of ‘marketing’.
24 The referring court also states that the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main) interpreted the concept of ‘marketing’ as meaning ‘to place on the market’ and therefore considered that the defendant in the main proceedings had made its products available for collection in Ittlingen (Germany). Consequently, according to that court, the product at issue in the main proceedings was not marketed in one of the countries referred to in points (a) to (c) of the first subparagraph of Article 5(1) of the Rome II Regulation, with the result that the habitual residence of the producer, which is situated in Germany, is therefore the connecting factor for determining the applicable law, in accordance with the second subparagraph of Article 5(1) of the Rome II Regulation.
25 The referring court is uncertain, however, as to whether an autonomous interpretation of the concept of ‘marketing’ should result in Italian law being applicable, given that the products at issue in the main proceedings were delivered in Italy, were installed there and the alleged damage was suffered in that country.
26 In that regard, the referring court has doubts, relying on the judgment of 9 February 2006, O’Byrne, (C‑127/04, EU:C:2006:93, paragraph 27), as to the relevance of the criteria set out in Article 7(a) and (b) and Article 11 of Directive 85/374, according to which a product is marketed when the producer puts it freely into circulation in the economic network at the end of the production process.
27 Although the German-language version of the Rome II Regulation uses the term equivalent to that of ‘putting into circulation’ in the German-language version of Directive 85/374, a comparison of the wording of the Rome II Regulation and that of Directive 85/374 in other language versions nevertheless raises doubts as to whether the interpretations of the concept of ‘putting into circulation’ arising from that directive can be transposed in the context of the Rome II Regulation, since the objectives pursued by those two texts are distinct.
28 Since the battery cages at issue in the main proceedings were integrated into aviary systems, the referring court also asks whether the concept of ‘marketing’ includes, in addition to ‘independent products’, that of ‘incorporated products’.
29 The referring court also has doubts as to the regime applicable where the situation at issue does not correspond to any of the scenarios in points (a) to (c) of the first subparagraph of Article 5(1) of the Rome II Regulation.
30 Lastly, the referring court, observing that the applicant in the main proceedings has already operated battery cages of the same type produced by the defendant in the main proceedings in Italy, asks whether the interpretation of the concept of a product of the ‘same type’, within the meaning of the second subparagraph of Article 5(1) of the Rome II Regulation, also applies to the first subparagraph of that article, since that concept can be interpreted strictly, as referring exclusively to the individual product causing the damage, or broadly, in the sense of an identical product, or even a product of the same type, as the product concerned.
31 In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is the term “market[ing]” within the meaning of Article 5(1) of [the Rome II Regulation] to be interpreted as meaning that a product is marketed in the country in which the final consumer acquires it from the distributor even in the case where the manufacturer, which is established in another country, has previously handed over the product, at its place of establishment, to a carrier which has delivered the product directly to the place where the final consumer is established, or, in those circumstances, does the marketing take place, also in relation to the final consumer, in the country in which the manufacturer is established?
(2) Is the term “market[ing]” within the meaning of Article 5(1) of [the Rome II Regulation] to be interpreted as meaning that a product can be marketed not only by the manufacturer itself but also by a third party such as, for example, a distributor which has acquired it from the manufacturer?
(3) If [the second question] is to be answered in the affirmative, is the “marketing” of the specific defective/damaging product in the country of the end customer precluded in that event if the end customer acquires or leases the product from the distributor as a component of a larger technical system which the distributor installs at the purchaser’s premises?
(4) Which national law is applicable if none of the connecting factors provided for in Article 5(1) of [the Rome II Regulation] is present?
(5) When assessing whether a product has been marketed in a particular country within the meaning of Article 5(1) of [the Rome II Regulation], must regard be had to the specific defective/damaging product, or is it sufficient if, in any case, an identical product or a product of the same type has been marketed in the particular country?’
Consideration of the questions referred
The first and second questions
32 By its first and second questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 5(1) of the Rome II Regulation must be interpreted as meaning that the place in which a product is marketed, within the meaning of that provision, is only the place where the product leaves the manufacturer’s factory or whether it may also be the place where the person sustaining the damage acquires the product from a distributor or the place where the product is delivered to that person by a carrier.
33 At the outset, it should be noted that the Rome II Regulation does not contain a definition of the concept of ‘marketing’, which appears in points (a) to (c) of the first subparagraph of Article 5(1) of the Rome II Regulation.
34 According to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law, which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (judgment of 10 February 2022, ShareWood Switzerland, C‑595/20, EU:C:2022:86, paragraph 21 and the case-law cited).
35 As Article 5(1) of the Rome II Regulation makes no reference to the law of the Member States, it should therefore be interpreted autonomously and uniformly.
36 It is apparent from the order for reference that the German-language version of Article 5(1) of the Rome II Regulation refers to the ‘putting into circulation’ (‘in Verkehr gebracht’) of the product and that the term ‘Inverkehrbringen’ is also found, in essence, in the German-language version of Article 7(a) and (b) and Article 11 of Directive 85/374, with the result that those two concepts could be interpreted in a similar manner.
37 However, such a similarity is not apparent from the wording of other language versions of Article 5(1) of the Rome II Regulation, in particular the wording in Spanish (‘comercializó’), English (‘marketed’), French (‘commercialisé’), Italian (‘commercializzato’) and Dutch (‘op de markt is gebracht’), inasmuch as the respective language versions of Articles 7 and 11 of Directive 85/374 use the words, in Spanish, ‘puso en circulación’, in English, ‘put into circulation’, in French, ‘mise en circulation’, in Italian, ‘messo in circolazione’ and in Dutch, ‘in het verkeer is gebracht’.
38 Thus, and in accordance with settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement for uniform application of EU law. Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, to that effect, judgments of 27 March 1990, Cricket St Thomas, C‑372/88, EU:C:1990:140, paragraphs 18 and 19, and of 20 November 2025, Lolach, C‑327/24, EU:C:2025:901, paragraph 29).
39 As regards the general scheme of the legislation of which Article 5 of the Rome II Regulation forms part, it should be noted that that article is part of Chapter II of that regulation, entitled ‘Torts/Delicts’. Together with Articles 6 to 9 of that chapter, Article 5 contains special rules aimed at clarifying the general rule established in Article 4 of that regulation, as regards damage occurring under particular circumstances.
40 Under Article 4(1) of the Rome II Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict is to be the law of the country in which the damage occurs, unless the person claimed to be liable and the person sustaining the damage both have their habitual residence in the same country at the time when the damage occurs, in which case, in accordance with Article 4(2), the law of that country is to apply.
41 Article 5 of the Rome II Regulation provides for special conflict-of-law rules applicable to non-contractual obligations arising out of damage caused by a product. For this purpose, the first subparagraph of Article 5(1) establishes a cascade system of connecting factors, under which the applicable law is to be, under Article 5(1)(a), the law of the country in which the person sustaining the damage had his or her habitual residence when the damage occurred, if the product was marketed in that country, or, failing that, under Article 5(1)(b), the law of the country in which the product was acquired, if the product was marketed in that country, or, failing that, under Article 5(1)(c), the law of the country in which the damage occurred, if the product was marketed in that country.
42 That cascade system is supplemented by a foreseeability rule, set out in the second subparagraph of Article 5, under which, if the person claimed to be liable could not reasonably foresee the marketing of the product, or a product of the same type, in the country the law of which is applicable under Article 5(1)(a), (b) or (c), the law applicable is to be the law of the country in which the person claimed to be liable is habitually resident.
43 Moreover, Article 5(2) of the Rome II Regulation states that, where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraph 1 of that article, the law of that other country is to apply.
44 In order to determine the meaning that should be given to the concept of ‘marketing’, it must be stated, in the first place, that the words ‘product [that] was marketed’ in the first subparagraph of Article 5(1) of the Rome II Regulation, are used objectively, inasmuch as they make no reference to the person who manufactured the product. Similarly, the second subparagraph of Article 5(1) of the Rome II Regulation refers to ‘the person claimed to be liable’, an expression which includes not only the person who manufactured the product concerned, but also any other person involved in the marketing of that product.
45 In the second place, for the purposes of Article 5(1) of the Rome II Regulation, marketing may occur both in the country where the person sustaining the damage had his or her habitual residence when the damage occurred and in the country in which the product was acquired or in which the damage occurred.
46 It follows, first, that the concept of ‘marketing’, within the meaning of Article 5(1) of the Rome II Regulation, is defined by reference to the product in question, irrespective of the person who manufactured it or produced it, with the result that it is irrelevant whether the person sustaining the damage acquired the product concerned directly from the manufacturer or producer or whether that acquisition occurred through a distribution process involving one or more other parties. Second, the place where a product is marketed is not limited to the place where it is manufactured or produced, but also extends to the place where it is acquired by the person sustaining the damage.
47 That interpretation is confirmed by the presence, in the second subparagraph of Article 5(1) of the Rome II Regulation, of a particular connecting factor for the case where the person claimed to be liable could not reasonably foresee the marketing of the product concerned in the country the law of which is applicable under points (a), (b) or (c) referred to in the first subparagraph of Article 5(1).
48 If the concept of ‘marketing’ a product were to be limited solely to marketing by the producer or the manufacturer, that particular connecting factor would be deprived of any practical effect, since it is difficult to conceive how marketing carried out by the producer or the manufacturer itself would not be foreseeable by that producer or manufacturer.
49 That interpretation of the concept of ‘marketing’ is also supported by the objective pursued by the Rome II Regulation. As is apparent from recital 20 of that regulation, the conflict-of-law rule in matters of product liability should meet the objectives of fairly spreading the risks inherent in a modern high-technology society, protecting consumers’ health, stimulating innovation, securing undistorted competition and facilitating trade. In that regard, the creation of a cascade system of connecting factors – which gives particular weight to the first element, designating the law of the country in which the person sustaining the damage has his or her habitual residence when the damage occurs – together with a foreseeability clause, is a balanced solution in regard to those objectives.
50 An interpretation of the concept of ‘marketing’ that is limited solely to the product concerned ‘leaving the factory’ would clearly be contrary to those objectives, inasmuch as it would call into question the balance on which those objectives are based. Such a restrictive interpretation would lead to the determination of the applicable law under Article 5(1)(a) to (c) of the Rome II Regulation being conditional upon whether the person sustaining the damage has his or her habitual residence in the country where that ‘leaving the factory’ takes place, whether the product was acquired in that country or whether the damage occurred in that country, thereby affording the ‘leaving the factory’ a privileged role in the conflict-of-law legislation in matters of product liability.
51 In the present case, it is apparent from the documents before the Court that the six ‘Salmet’ battery cages were manufactured and placed on the market by the defendant undertaking in the main proceedings in Germany. However, the acquisition of the battery cages at issue in the main proceedings by the applicant in the main proceedings – which occurred either in the context of several leasing contracts for a complete aviary system which involved various parties, among which were distribution and transport undertakings, or in the context of a resale by those undertakings to another Italian undertaking which later merged with the applicant in the main proceedings – did not take place in that country.
52 Accordingly, subject to the factual verifications which it is for the referring court to carry out, since the marketing of the products at issue took place in Italy, Italian law is applicable under Article 5(1) of the Rome II Regulation. First, in accordance with Article 5(1)(a), the person sustaining the damage had its habitual residence in Italy when the damage occurred, second, under Article 5(1)(b), the product concerned was acquired there and, third, under Article 5(1)(c), the damage also occurred in Italy.
53 In the light of the foregoing considerations, the answer to the first and second questions is that Article 5(1) of the Rome II Regulation must be interpreted as meaning that the place in which a product is marketed, within the meaning of that provision, is not only the place where the product leaves the manufacturer’s factory, but also the place where the person sustaining the damage acquires the product from a distributor or the place where the product is delivered to that person by a carrier.
The third question
54 By its third question, the referring court asks, in essence, whether Article 5(1) of the Rome II Regulation must be interpreted as meaning that the concept of ‘marketed product’, within the meaning of that provision, also covers a product that is a component of a technical system.
55 In accordance with the case-law cited in paragraph 34 above, the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union.
56 As is apparent from paragraph 44 above, the neutral wording used in Article 5(1) of the Rome II Regulation does not lend itself to an explanation of the concept of a ‘marketed product’.
57 Nevertheless, it is apparent from the proposal for a Regulation of the European Parliament and of the Council, of 22 July 2003, on the law applicable to non-contractual obligations (‘Rome II’) (COM(2003) 427 final), that, as regards the definition of the concept of a ‘product’, reference should be made to the definition in Article 2 of Directive 85/374.
58 Under Article 2 of that directive, ‘product’ is defined as ‘all movables’, even though incorporated into another movable or into an immovable.
59 Furthermore, Article 7 of that directive, relating to exemptions from producer liability, expressly refers to the product as a component that has been fitted into the end product.
60 It follows that the concept of ‘marketed product’ within the meaning of Article 5(1) of the Rome II Regulation is not limited to products as such, but also covers products that are incorporated into systems.
61 Consequently, the marketing of a product does not end once that product is taken over by a processor or once it is, as a component part, incorporated or built into an intermediate or end product.
62 Only a broad interpretation of the concept of a ‘marketed product’ is capable of ensuring the effectiveness of the cascade system of connecting factors established by Article 5 of the Rome II Regulation. By facilitating a determination, based on hierarchical and foreseeable factors, of the law applicable to damage caused by various types of products, that interpretation contributes to the attainment of the objectives pursued by that article, in particular the foreseeability of the applicable law and the fair spreading of the risks referred to in paragraph 49 above.
63 Conversely, excluding composite products from the scope of Article 5 of the Rome II Regulation would deprive the mechanism implemented by that article of its practical effect. That interpretation would result in situations in which the cascading connecting factors are specifically intended to apply in order to determine the applicable law being excluded from the scope of that article. That exclusion would, moreover, be based on an artificial and arbitrary distinction based on the production arrangements for products, even though those arrangements, in themselves, cannot serve to justify the products being subject to different conflict-of-law regimes.
64 In the light of the foregoing, the answer to the third question is that Article 5(1) of the Rome II Regulation must be interpreted as meaning that the concept of a ‘marketed product’, within the meaning of that provision, also covers a product that is a component of a technical system.
The fourth question
65 By its fourth question, the referring court asks, in essence, which law is applicable if none of the connecting factors laid down in Article 5(1) of the Rome II Regulation applies.
66 In accordance with settled case-law, questions referred for a preliminary ruling by a national court in the legislative and factual context which that court is responsible for defining, and the accuracy of which is not a matter for the Court of Justice to determine, enjoy a presumption of relevance. The Court may refuse to give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court, are not satisfied or where it is quite obvious that the interpretation of a provision of EU law, or the assessment of its validity, which is sought by the national court, bears no relation to the actual facts of the main action or to its purpose, or where the problem is hypothetical (judgment of 25 March 2021, Obala i lučice, C‑307/19, EU:C:2021:236, paragraph 48 and the case-law cited).
67 In that regard, it should be noted that the fourth question is asked in the event that the cascade system of connecting factors provided for in Article 5(1) of the Rome II Regulation does not make it possible to determine the applicable law and that it is necessary, therefore, to fill that supposed gap in the Rome II Regulation on the basis that the product concerned was not marketed.
68 However, it is not apparent from the documents before the Court or from the answers given to the first to third questions that it is not possible to determine the place in which the products at issue in the main proceedings were marketed or that those products have not been marketed.
69 In those circumstances, answering the fourth question in those circumstances would clearly amount to providing an advisory opinion on a hypothetical question, in disregard of the task assigned to the Court in the context of the judicial cooperation established by Article 267 TFEU (see, to that effect, judgment of 7 November 2013, Romeo, C‑313/12, EU:C:2013:718, paragraphs 39 and 40 and the case-law cited).
70 Consequently, the fourth question is inadmissible.
The fifth question
71 By its fifth question, the referring court asks the Court, in essence, to interpret the concept of a product of the ‘same type’, within the meaning of the second subparagraph of Article 5(1) of the Rome II Regulation.
72 At the outset, it must be noted that that provision introduces a connecting factor relating to the marketing of a product of the ‘same type’ as the product concerned where the person claimed to be liable could not have reasonably foreseen the marketing of the product in the country the law of which is applicable under points (a) to (c) of the first subparagraph of Article 5(1) of the Rome II Regulation.
73 It is not apparent from the documents before the Court or from the answers given to the first to third questions that, in the present case, the determination of the place in which the products at issue in the main proceedings were marketed was not reasonably foreseeable by the defendant in the main proceedings.
74 Consequently, in accordance with the case-law referred to in paragraphs 66 and 69 above, the fifth question is inadmissible.
Costs
75 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Sixth Chamber) hereby rules:
1. Article 5(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)
must be interpreted as meaning that the place in which a product is marketed, within the meaning of that provision, is not only the place where the product leaves the manufacturer’s factory, but also the place where the person sustaining the damage acquires the product from a distributor or the place where the product is delivered to that person by a carrier.
2. Article 5(1) of Regulation No 864/2007
must be interpreted as meaning that the concept of a ‘marketed product’, within the meaning of that provision, also covers a product that is a component of a technical system.
[Signatures]
* Language of the case: German.