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ECJ has to deal with faulty PIP breast implants again

ECJ has to deal with faulty PIP breast implants again



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OLG Frankfurt raises a question about discriminatory insurance protection

The European Court of Justice (ECJ) has to deal again with the defective breast implants of the French manufacturer PIP. On Tuesday, September 11, 2018, the Higher Regional Court (OLG) Frankfurt am Main asked the Luxembourg judges whether the manufacturer was allowed to limit his insurance cover to customers in France and whether this would result in the insurer's obligation to pay to customers in other EU countries. Countries (Az .: 8 U 27/17).

The breast implants of the now insolvent French company Poly Implant Prothèse (PIP) were sold ten thousand times worldwide. They did not contain the usual special silicone, but cheaper industrial silicone. The management has already been convicted of fraud in France.

According to an estimate by the Federal Institute for Drugs and Medical Devices (BfArM), around 6,000 women in Germany have had PIP implants inserted. The French authorities stopped sales in April 2010 after reports of burst and leaking silicone cushions.

Since it cannot be predicted whether and when there will be problems with the implants, the BfArM recommended in early 2012 that women affected had PIP implants removed again. The plaintiff followed this in the event of a dispute.

In order to get the costs reimbursed despite the PIP insolvency, numerous women had initially sued the operating doctors. However, this was unsuccessful before the courts in Germany (see OLG Karlsruhe, judgment of April 20, 2016, ref .: 7 U 241/14; JurAgentur message from April 21, 2016 with further references).

Further lawsuits were filed against TÜV Rheinland, which had awarded the European CE seal of approval for the implants. On the submission of the Federal Court of Justice (BGH) in Karlsruhe, the ECJ ruled that CE certification was not associated with a comprehensive monitoring mandate even for medical devices; the external inspection relates only to the manufacturing process and not the product itself (judgment and JurAgentur announcement from February 16, 2017, ref .: C-219/15). The BGH then dismissed a corresponding lawsuit (judgment and JurAgentur notification of June 22, 2017, ref .: VII ZR 36/14).

In the Frankfurt case, the lawsuit is now directed against the liability insurance of the manufacturer PIP. After his contract with PIP, insurance coverage was limited to claims in France.

The OLG now wants to know from the ECJ whether this was compatible with the European ban on discrimination or whether it rather leads to discrimination against EU citizens from other countries. However, it is unclear whether the ban on discrimination should only be observed by the EU and its member states, or whether it can also apply to private individuals, such as insurance here. The ECJ had not yet decided this.

With CE certification for medical devices, unannounced controls and random checks are now possible; from 2020, they will be mandatory. mwo

Author and source information



Video: PIP breast implants: Only French victims of global scandal can claim compensation, rules ECJ (August 2022).