ITALY Trends and Developments Contributed by: Maria Rosa Galletti, Silvio Severino and Simone Esposito Cordani, RASS – Studio Legale Rinaldi e Associati
included in repealed Directive (EEC) 85/374, but it is emphasised more strongly by the PLD. Likewise, the scope of the PLD has been sig - nificantly broadened, where the definition of “product” is significantly wider. In fact, the PLD provides that “product” means all movables, even if integrated into or interconnected with another movable or immovable, including elec - tricity, digital manufacturing files, raw materials and software. AI software is expressly included. The PLD aims to mitigate the information asym - metry that exists between consumers and man - ufacturers, especially with regard to AI systems. To this end, the PLD has introduced a series of provisions, including disclosure obligations and reversals of the burden of proof. These new pro - visions should give consumers a better chance of defending their rights in court. Regarding the disclosure obligation, Article 9 of the PLD provides for several obligations upon defendants and claimants. The most important provision for consumer protection, clearly aimed at reducing the information asymmetry men - tioned above, is the one set out in paragraph 1 of the aforementioned Article 9. According to this provision, upon request by a claimant “who has presented facts and evidence sufficient to support the plausibility of the claim for com- pensation” , the defendant is bound to disclose the documentation and technical information in their possession. Paragraph 2 imposes a similar obligation on the claimant, upon request by the opposing party, while paragraph 3 requires that the disclosure provided for under paragraphs 1 and 2 must be limited “to what is necessary and proportionate” , without providing any further clarification. Paragraph 5 states that, in the pres - ence of trade secrets, the court may adopt con -
fidentiality protection measures upon request or ex officio. Generally, a court order of disclosure may cover not only documents but also technical informa - tion. Given the technical complexity of the informa - tion that may be provided by professionals, paragraph 6 provides that such evidence must be presented “in an easily accessible and easily understandable manner” . Under Italian general civil law, the most similar existing provision is Article 210 of the Code of Civil Procedure, concerning the court’s order to exhibit documents in court. The second remedy under Article 10 of the PLD consists of easing the burden of proof on the injured party by means of presumptions con - cerning the defectiveness of the product and the causal link between such defectiveness and the damage. Paragraph 2 provides a presumption of defec - tiveness: • if the defendant fails to disclose relevant evi - dence pursuant to Article 9, paragraph 1; • if the claimant proves a breach of safety requirements under EU or national law; or • if it is demonstrated that the damage was caused by an “obvious malfunction” during use. Paragraph 3 presumes a causal link between defectiveness and damage if it is proven that: • the product is defective; and • the nature of the damage “is of a kind typi- cally consistent with the defect” .
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