The CJEU reinforces the liability of the distributor in claims for damages for defective products

Chapter 1 - Summary of the proceedings

The case in question is “C-157/23 Ford Italia SpA v. ZP and Stracciari SpA”, in which the damage caused by a traffic accident in which the airbag of aFord vehicle did not work is disputed. The vehicle, purchased by the consumer from a dealer (Stracciari SpA), was manufactured by Ford WAG (Germany) and distributed in Italy by Ford Italia SpA. The consumer sued both the dealer and Ford Italia for the damages suffered.

At first instance, Ford Italia argued that it was the German company, Ford WAG, which was liable as the manufacturer of the vehicle and that this information was included in the invoice of the car and that therefore Article 3.3 of Directive 85/374/EEC applies. 3 of Directive 85/374 “If the producer of the product cannot be identified, each supplier of the product shall be deemed to be its producer, unless he informs the injured party of the identity of the producer or of the person who supplied him with the product within a reasonable period of time”; this provision corresponds to article 138.2 of the TRLGDCU.

Ford Italia was convicted at first and second instance on the basis of the following reasoning: “for the purposes of liability for damage caused by defective products, the supplier of such a product must be assimilated to the producer when its trademark or company name and the trademark or company name of the producer coincide, in whole or in large part, and when the product is marketed under that trademark”.

The distributor appealed in cassation before the Supreme Court, which asked the CJEU for a preliminary ruling to clarify whether it was in accordance with article 3.1 of Directive 85/374 (this provision corresponds to article 5 of the TRLGDCU) to extend the producer's liability to the distributor, even though the latter has not physically affixed its name, trademark or other distinctive sign to the product, just because the supplier has a name, trademark or other distinctive sign totally or partially coinciding with that of the producer.

Chapter 2 - Opinion of the CJEU

The CJEU responds by stating that a supplier can be understood as “presenting himself as a producer” when, despite not having affixed his name, trade mark or other distinctive sign to the product, his name coincides with both that of the producer and that of the product, so that the “apparent producer” creates the appearance in the consumer that he is involved in the manufacturing process: he uses his notoriety to make that product more attractive, which justifies that, in return, his liability for that use can arise.

Chapter 3 - Impact of the CJEU ruling

With this ruling, the CJEU is reinforcing consumer protection by allowing the consumer to sue both the manufacturer and the distributor whose trademark or name suggests that it assumes liability for the product solely because it coincides with the name or trademark of the manufacturer or product, equating the liability of both, despite the fact that the CJEU itself has concluded in numerous decisions that the liability of the distributor is exceptional. And not only that, the CJEU somehow “eliminates” the exemption from liability of the distributor provided for in article 3.3 of Directive 85/374 (and article 138.2 of the TRLGDCU) in those cases in which the distributor identifies the manufacturer of the product in due time.