Common Law Society patients were subject to medical treatment based on the fluid. Hence, the product is put into circulation when it is used during the provision of a specific service. The second case which answers to the question “when”, Declan O`Byrne v. Sanofi Pasteur MSD Ltd (hereinafter: “O`Byrne case”), was referred to the Court of Justice of the European Union by the English Court. The claimant was subject to vaccination with an antihaemophilic vaccine which proved to be defective. On the facts of this case, the question when the product is put into circulation became important as the producer of the vaccine sent it to a distributor and then the distributor sold it to the UK Department of Health. The UK Department of Health nominated the hospital to which the distributor delivered the vaccine. The English court asked whether the product is put into circulation at the moment when it is transferred from the production facility to the subsidiary or when the subsidiary transfers the product to the third party. The Court held that a product must be considered as having been put into circulation (…) when it leaves the production process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed. In fact, for the liability to be imposed it is irrelevant whether the product was sold to the consumer directly by the producer or through its subsidiary. Yet, it is for the national courts to consider two scenarios. First, whether the company involved is another company carrying out different production activities or the company involved is simply a distributor or depository for the product produced by the parent company. The national courts on the facts of each case must consider whether the link between the company - producer and the other company is so close that the concept of the producer would encompass both companies. If the term “producer” encompasses both companies, the product was put into circulation when the subsidiary sold it to the third party. It is irrelevant whether or not the subsidiary paid the price for the product to the parent company. Yet, if the term “product” would not encompass both companies, the product is put into circulation at the time when it is transferred to a distributor. Article 7 (c) of the Directive provides another exemption and it reads that the producer is not liable if it proves that the product was neither manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distributed by the producer in the course of its business. Similar regulation is provided in Section 4 (c) of the Consumer Protection Act and in Article 4493 § 1 of the Polish Civil Code. In the light of these regulations, it is crucial to answer what it means “for an economic purpose” and “in the course of the producer’s business”. The answer to the above mentioned question was provided by the European Court of Justice in already mentioned case, Veedfald case. The question asked was whether the aforementioned exemption applies in a situation where the product was manufactured and used in the course of providing a specific medical service which was financed from the public funds for which the patient did not pay. The Court held that: the fact that products are manufactured for a specific medical service for which the patient does not pay directly but which is financed from public funds maintained out of taxpayer’s contributions cannot detract from the economic and business character of that manufacture. Thus, the exemption from Article 7 (c) of the Directive does not extend to the situation where the manufacture of the product and the service performed was financed from the public funds, even if the consumer did not pay for it directly.
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