Court:

Rome Court of appeal, 10 February 2009, n. 638 (C.I. v. Renault Italia S.p.A.), in DeJure online

Topics:

Limits on the liability of the importer-supplier of a product manufactured in a different EU Member State

Importer-supplier's lack of standing

Need for the injured party to sue the manufacturer, where known and not extra-European

Articles:

Directive 85/374/EEC: Articles 1 and 3 [D.P.R. n. 224/1988 (repealed): Articles 1 (producer), 3 subpar. 4 (importer), and 4 subpar. 1 (supplier). Today, see Consumption Code ("Codice del consumo" - D.Lgs. n. 206/2005): Articles 114 and 116].

Directive 2001/95/EC: Article 2(e)(iii) [D.Lgs. n. 172/2004 (repealed): Article 2, lett e). Today, see Consumption Code ("Codice del consumo" - D.Lgs. n. 206/2005): Article 103, lett. d)].

Facts:

Two of the front-seat airbags of an automobile abruptly inflated and exploded while the plaintiff was driving along the freeway. The driver lost control over the vehicle ending up off-road. Consequently, the passengers suffered serious injuries. The injured parties claimed that the damages stemming from the accident were entirely due to the airbag control unit's defectiveness and sought compensation from the Italian importer-distributor of the vehicle (presumably - the Court specifies - because thought to be the actual manufacturer of the automobile), but did not bring action against the French producer. The Court of first instance (Trib. Rome, 6 August-18 September 2003) granted the denfense motion to dismiss highlighting that the defendant did not have standing to be sued because the actual manufacturer of the defective product was not unknown and no other statutory causes of action could operate against the importer-distributor.

Legal Questions:

Can the sole importer-distributor of a defective item, manufactured by an enterprise operating in a European country other than the one in which the product is distributed, be held liable for damages if the 'foreign' manufacturer has not been served a writ of summons within the same proceedings?

Decison:

Although it is not possible to infer from the description of the facts laid down by the Court whether the defendant was summoned by the plaintiff as a distributor, an agent, a subsidiary, or a mere retailer, the appellate Court upheld the decision of the lower Court confirming that the defendant:

1) could not be deemed a producer, because it was known that that kind of autovehicles was entirely manufactured out of State, namely in France;

2) had not imported the product from a non-EU country; and

3) could not be held liable even in its capacity as a supplier because it was not true that the original manufacturer could not be identified. Furthermore, no evidence showed that the defendant could affect the safety properties of the product, the vehicle being entirely manufactured in France. The Court maintained that the identity and nationality of the manufacturer were clearly described in the original car registration document.

Comments:

In order to insulate the Italian importer-supplier from liability, the Rome Court of appeals interpreted art. 4 of D.P.R. n. 224/1988 (today, art. 116 Cons. Code) as to place liability upon the supplier solely where the producer cannot be identified and where the supplier failed to inform the injured, within three months from the request, about the producer's name and address. Moreover, the Court repeatedly stressed upon the circumstance that the car manufacturer was not extra-European (art. 3 subpar. 4 D.P.R. n. 224/1988) and thus the plaintiff should have directly sued the actual producer and not its Italian branch/subsidiary/distributor/importer/retailer (once again: the appellate Court did not elaborate on this aspect).

Eventually, the plaintiffs had to pay for the other party's attorney's fees, adding up to € 6,000.00.