ITALY Trends and Developments Contributed by: Maria Rosa Galletti, Silvio Severino and Simone Esposito Cordani, RASS – Studio Legale Rinaldi e Associati
By court order of 6 March 2023, the Court referred a preliminary ruling to the CJEU con - cerning the interpretation of Article 3, paragraph 1, of Directive (EEC) 85/374, which states with regard to the concept of producer: “‘producer’ means the manufacturer of a finished product... and any person who, by putting his name, trade mark or other distinguishing feature on the prod- uct presents himself as its producer” . The Court focused, in particular, on the exact meaning of the expression “by putting his name” . The reference was made in the context of proceedings involving Ford Italia, which was sued (together with an authorised dealer) by a consumer alleging that they were harmed by a defect in the airbag of a Ford-branded vehicle. Ford Italia is the company that distributes in Italy vehicles manufactured by Ford WAG, established in Germany. The Court asked the CJEU whether Ford Italia could be considered a manufacturer within the meaning of Article 3, paragraph 1 solely on the basis of sharing an identical name with that of the manufacturer. The CJEU ruled that a company (like Ford Italia) that, due to a mere coincidence of name, has de facto presented itself as a manufacturer to consumers may be considered a manufacturer even in the absence of an active conduct con - sisting of putting their name, trade mark or other identifying sign on the product. As explained in the decision, whether the suppli - er physically affixed its own name or trade mark, or whether there was simply an identical desig - nation to that of the manufacturer, is irrelevant.
Actually, the purpose of the rule is to protect consumers who have had a level of trust com - parable to the reliance they would have had if the product had been sold directly by the manu - facturer. In other words, the judgment highlights, from a different point of view, the element of the legitimate expectations of consumers, as men - tioned in the preceding paragraph. Essentially, the CJEU aims to raise the level of consumer protection as much as possible. Another innovative element that can be inferred from the ruling is that – contrary to what is pro - vided by the Directives – mere communication to the injured party of the producer’s identity is not sufficient to exempt a distributor who has de facto been perceived as the manufacturer from liability. In the proceedings, Ford Italia had indeed argued that it had indicated Ford WAG as the producer on the invoice. Nonetheless, the judgment emphasises that “in accordance with Article 5 of Directive (EEC) 85/374, since a person who presents him or her- self as a producer and the manufacturer of the defective product are jointly and severally liable, the liability of that person invoked by the con- sumer is without prejudice to the provisions of national law concerning the rights of contribution or recourse” . The decision will have significant consequences, especially in the automotive and pharmaceuti - cal sectors. It is likely that distributors operat - ing as multinational groups will feel the impact of this ruling, as their local entities often have corporate names that coincide with that of the manufacturer.
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