Ombre e luci nella responsabilità del produttore

The Author wonders why the EEC Directive 374/1985, concerning liability for defective products, was at first given only a slow and cautios reply by Italian and European Law Courts. Though Italian scholars welcomed its transposition (1988) as the long expected introduction of a strict producers' liability system, Italian lawyers and Courts went on for a long time using their old law tools, and only in the present century we are facing with a real blossoming of judgments applying the Directive: but in spite of this the old trends still survive. In Italy, but also in other Member States, in a number of cases the Courts chose to base their judgments on their domestic general rules of tort law, instead of applying the special rules implementing the Directive, so altering in favour of consumers the delicate balance established at European level; therefore the European Court of Justice tried to stop all attempts to set up a parallel no-fault tort liability system. But in cases concerning damages due to medicaments or blood transfusions Italian judges still go on applying art. 2050 of the Civil Code, holding producers liable for having exploited a dangerous activity: doing so, they can bypass the problems arising from the fact that the Italian Act transposing the Directive did not choose to shift development risk from victims to producers. There are other shortcomings (in the Directive and) in the Italian Consumer Code concerning product liability: for instance, the fact that it only allows compensation of the economic loss for damages to the victim’s goods different from the defective product, whereas damages to the defective product itself lie outside its scope; or the fact that non material damages due to defective products are not covered by the (Directive and the) Consumer Code. So the victims’ path towards a full compensation does not appear straight-lined, if compared with the traditional Civil Code tools. But there are also aspects that may grant victims a better protection: when, at last, the victims’ lawyers and the Courts became confident with the European tool, they found that the rules concerning the proofs of both the product defectiveness and the causal link between defect and damage could be substantially reduced to one: the evidence that there was a damage in normal use conditions. So, in actual fact, they built a res ipsa loquitur rule, that arouses the victims’ interest in the European tool.