Product Liability Law In Italy

IMPLEMENTING THE EUROPEAN PERSPECTIVE

The European Union has adopted directives of broad and general scope to address product liability and product safety:

Directive 85/374/EEC (creation of no-fault, strict liability regime); Directive 1999/34/EC (strict liability for defective and unsafe products); Directive 92/59/EEC (general safety requirement that "no producer shall place a product on the market unless the product is a safe product"); and Directive 2001/95/EC (general product safety; introduction of the obligation upon manufacturers to notify the relevant government authorities if they have information that their product poses a risk to consumers, which may lead to a mandatory product recall). Italy has implemented Directive 85/374/EEC (the "Product Liability Directive") by Law No. 224 of May 24, 1988; Directive 1999/34/EC by Legislative Decree No. 25 of February 2, 2001; and Directive 92/59/EEC by Legislative Decree No. 111 of March 17, 1995 (both amended by Legislative Decree No. 206/2005—the "Consumer's Code"); and Directive 2001/95/EC by Legislative Decree No. 172 of May 21, 2004.

CONSUMER PROTECTION AND PRODUCT LIABILITY LEGISLATION IN ITALY

ARTICLE 2043 OF THE ITALIAN CIVIL CODE

In Italy, product liability was traditionally based on the general torts provision set forth in Article 2043 of the Italian Civil Code ("ICC"). This article provides that any person who by willful or negligent conduct causes unfair detriment to another party must compensate that injured party for any resulting damage (the "neminem laedere" principle). Article 2043 ICC allows consumers to sue manufacturers for damage caused by defective products. Negligence is typically an element necessary to establish liability.

In general, under Article 2043 ICC, the plaintiff must prove:

The defect of the product; The damage suffered; That the product defect caused the damage; and The defendant's negligence or fault. In accordance with this provision, moral damage1 can be compensated, and no one is exempt from liability. It can be difficult for a consumer to provide evidence of fault in connection with products that have complex manufacturing processes. Consequently, some court decisions and legal scholars have developed the theory that the defective nature of a product alone is sufficient to prove negligence in the manufacturing process. In their view, the manufacturer's fault can be proved by the mere existence of the defect generating the damage.

Claims brought under Article 2043 ICC are subject to the general five-year tort liability limitation period, starting from the time when the claimant could exercise his or her rights. The time limit is extended if the tort is connected to the perpetration of a crime. Moreover, when the damage is of a continuing nature or is aggravated over time, the limitation period starts from the aggravation that gave standing to sue.

Article 2043 ICC coexists with the strict liability system governed by Legislative Decree No. 224/1998, which implements the EU's Product Liability Directive (85/374/EC) and which has been consolidated by Legislative Decree No. 206/2005—the Consumer's Code.

LEGISLATIVE DECREE NO. 206/2005—THE "CONSUMER'S CODE"

The Consumer's Code harmonizes and consolidates the laws of purchase and consumption in order to ensure a high level of protection to consumers and users in accordance with the principles of the European Union's legislation. The Consumer's Code has been in force since October 23, 2005.

The Consumer's Code, in conjunction with general law (such as the ICC), provides rules designed to protect consumers, such as those on transparency in banking and consumer credit agreements; regulation of contracts and liability of financial brokers; insurance contracts; and regulation of the retail trade.

With respect to product liability, the Consumer's Code:

  1. Recognizes "fundamental" rights of users and consumers (such as health, safety, information, correctness in advertising, consumer awareness and education, and propriety and fairness in contracts);

  2. Regulates some aspects of consumer contracts, including warranties applicable to the sale of consumer goods and post-sale duties;

  3. Regulates product safety and product liability; and

  4. Addresses consumer access to justice and the form of collective actions.

    The Consumer's Code introduces a strict product liability regime. It defines "product," "defective product," "manufacturer," "supplier," and the scope of manufacturers' and suppliers' liability. The injured party must prove the damage, the defect in the product, and the related causation, but not the manufacturer's fault.

    Article 117 of the Consumer's Code provides that a product is defective when it does not provide the safety that one can reasonably expect, taking all circumstances into account, including:

  5. The way in which the product was distributed; its packaging, evident features, and instructions; and the warnings supplied;

  6. The product's reasonably expected use and life cycle; and

  7. The period during which the product was distributed.

    Furthermore, according to this provision, a product cannot be considered defective simply because a safer one was marketed later. A product is defective if it does not offer the safety normally offered by other samples from the same range.

    To summarize, in product liability claims under the Consumer's Code, the injured party must provide evidence of:

    The product defect under the Consumer's Code definition; The damage incurred (based upon general tort rules); The causal relationship between defect and damage (on the basis of the general principles of causation in tort laws, proof of causation is often achieved through presumptions); but Unlike under Article 2043 ICC, no evidence of fault is required. Since the plaintiff has no burden of proving fault, the defendant must provide evidence excluding liability (e.g., proving the plaintiff used the product inappropriately). Other laws do not affect the product liability legislation directly but involve consumer protection and incentives to increase competition. See Law No. 248 of August 4, 2006, and Law No. 40 of April 2, 2007 (confirming Legislative Decree No. 7 of January 31, 2007).

    THE DOUBLE-TRACK PROTECTION: THE EUROPEAN COURT OF JUSTICE AND ITALIAN SUPREME COURT DECISIONS

    Litigation by injured plaintiffs against product manufacturers is increasing. Because the Consumer's Code allows a consumer to seek (alternatively or cumulatively) other forms of protection provided by law, a product liability plaintiff will likely sue under both the Consumer's Code and Article 2043 ICC.

    Article 13 of the EU Product Liability Directive permits cumulative theories of liability. Article 13 provides: "This Directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this Directive is notified." The European Court of Justice has clarified Article 13 of the Product Liability Directive:

    The reference in article 13 to the rights which an injured person may rely on under the rules of the law of contractual or non-contractual liability must be interpreted as meaning that the system of rules put in place by the directive . . . does not preclude the application of other systems of contractual or non-contractual liability based on other grounds, such as fault or warranty in respect of latent defects.2

    The Italian Supreme Court (Corte diCassazione) has confirmed the double-track protection system, based on both the EU's product liability regime and domestic rules on tortious liabilities.3 In a case concerning damage caused by a defective car, the Supreme Court ruled that product liability claims can be grounded in the tort rules based on fault or negligence set out in Article 2043 ICC, in addition to the strict-liability regime under the Product Liability Directive. This double-track protection system allows the consumer compensation for damage that is not expressly provided for in Article 123 of the Consumer's Code,4 such as moral damage.

    It remains to be seen whether the double-track protection system for injuries caused by a defect in a product will be permitted when the ICC's domestic no-fault system of product liability conflicts with the EU's Product Liability Directive. The EC legislature wanted to prevent this sort of tension when it adopted a product liability directive promoting maximal harmonization, based on the principles of Article 100 of the EEC Treaty (now Article 94 EC). In theory, Member States may not maintain or establish provisions that depart from Community-harmonizing...

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