The producers’ liability for defective products

The European Union set up the principle of objective liability of producers, by approving the Directive n. 85/374, implemented in Italy by the DPR 224/88, in order to ensure a high level of consumer protection with reference to damages for people and goods provoked by a defective product. The Directive establishes the principle of absolute liability, independently from the absence of fault: it is applicable to all goods from industrial production. The EU Directive n. 99/34 extended the same principle to agriculture products (meat, cereals, fruit and vegetables) and to hunting products, with no possibility of dispensation.

So, if the product causes a damage, its producer is considered as liable and, in case he is not identifiable, the trader that has distributed it in the framework of a commercial activity takes the responsibility, in case he does not communicate the identity of the producer or of the person who has provided it. In the Italian legislation now the matter is included in the Code of Consumption (articles 114 to 127).

At EU level, therefore, it was considered as essential to harmonize the national legislations, because the great differences in law prescriptions on this matter may affect competition and interfere with the free circulation of goods within the Internal Market, besides of course representing an unequal protection level of consumers.

As said, the producer is liable for all damages caused by his products, even if he has not behaved in a faulty or malicious way in the production process.

What is meant as a “defective product”

The product is defective whenever it does not ensure the safety which is reasonably expected, taken in due consideration the following circumstances:

·          the way it has been put on the market, its presentation, its evident features, its operation instructions, safety directions provided

·          the use to which it is reasonably devoted and the consequent consumer behaviour

·          the period in which it has been distributed

A product cannot be regarded as defective just because another product, with improved safety measures, has been created later on. It is “unsafe” whenever it does not offer the same safety level of similar products, except improper use.

Let’s think about a vehicle with inadequate brakes or loosing fuel, about an household appliance with a bad electric  isolation, about a polluted or perished food ... in all such cases it is up to the producer to ensure that only safe products are put on the market and that all those having faults are recalled back, thus indemnifying the damaged consumers.