Article 12Liability of multiple economic operators

1. Without prejudice to national law concerning rights of contribution or recourse, Member States shall ensure that where two or more economic operators are liable for the same damage pursuant to this Directive, they can be held liable jointly and severally.

2. A manufacturer that integrates software as a component in a product shall not have a right of recourse against the manufacturer of a defective software component that causes damage where:

(a)

the manufacturer of the defective software component was, at the time of the placing on the market of that software component, a microenterprise or a small enterprise, meaning an enterprise that, when assessed together with all of its partner enterprises as defined in Article 3(2) of the Annex to Commission Recommendation 2003/361/EC (21) and linked enterprises as defined in Article 3(3) of that Annex, if any, is a microenterprise as defined in Article 2(3) of that Annex or a small enterprise as defined in Article 2(2) of that Annex; and

(b)

the manufacturer that integrated the defective software component in the product contractually agreed with the manufacturer of the defective software component to waive that right.