Latest developments in European Shopper Legislation: Unintentionally turning into an obvious producer – Fin Serve

AG Campos Sánchez-Bordona elaborated as we speak on the notion of a producer underneath the Product Legal responsibility Directive (Directive 85/374) within the case Ford Italia (C-157/23). A shopper on this case bought a Ford Mondeo automobile from Stracciari, Ford’s seller in Italy. The automobile itself was manufactured by Ford WAG, a German firm, which used one other firm, belonging to the identical firm group, – Ford Italia – to distribute it to Stracciari. After the buyer was concerned in a site visitors accident, throughout which the airbag didn’t work, they introduced a declare in opposition to the vendor – Stracciari, and Ford Italia. The latter claimed their ‘provider’ standing and recognized Ford WAG because the producer. Nonetheless, Italian courts allotted producer’s legal responsibility to Ford Italia within the instances earlier than them in each cases. 

As AG Campos Sánchez-Bordona additionally agrees right here with, utilizing Artwork. 3(1) PLD that’s contemplating Ford Italia as an ‘obvious producer’ as an alternative of Artwork. 3(3) PLD, which solely permits to carry the provider liable if they didn’t well timed establish the producer, is what the CJEU ought to think about right here. The referred query asks then whether or not if the provider has not bodily positioned its personal identify, dealer mark or different distinguishing characteristic on the buyer product, they may very well be held liable as a producer on the bottom that they share in entire or partly the identical identify, dealer mark or different distinguishing characteristic because the producer. How broad then is the idea of an ‘obvious producer’?

AG Campos Sánchez-Bordona advises the CJEU to think about that within the given case not solely the producer and the provider share the identical identify (which permits the provider, Ford Italia, to boost shopper confidence, profiting from the repute of Ford model – para 39) , however that in addition they belong to the identical group of corporations, working underneath the identical emblem (para 50), and that the automobile bears the commerce mark the characterises each corporations. As such, the buyer may have thought-about Ford Italia as presenting itself as a producer, which may result in their legal responsibility underneath the PLD. ‘(…) the buyer can’t be anticipated to find, by his or her personal means, who the (precise) producer is, the place that producer is distinct from the provider which presents itself with these traits.” (para 41). This in accordance with AG Campos Sánchez-Bordona may result in to joint and several other legal responsibility of precise producer and obvious producer (para 48).

The AG Campos Sánchez-Bordona attracts parallels to the latest Fennia v Philips case (C-264/21 – with our remark), nevertheless, in that case each Saeco and Phillips names have been positioned on the buyer product, which made the reference to the ‘obvious producer’ simpler. The second invoked case, O’Byrne (C-127/04), made it simpler to think about as a producer one other firm, a distributor, belonging to the identical firm group. Nonetheless, there, the excellence with the present case was that in O’Byrne the precise producer may now not have been sued, because of the deadlines having handed. 

As AG Campos Sánchez-Bordona mentions in para 31 the given case requires cautious weighing of the buyer safety pursuits, which the broader interpretation of the notion supplies, in opposition to pursuits of merchants concerned within the manufacturing and provide chain. 

I’m not totally satisfied whether or not within the present case the latter mustn’t have prevailed. Contemplating that the provider, Ford Italia, promptly recognized the precise producer, evidently the buyer pursuits may have been protected by nationwide procedural legal guidelines permitting both including to the process one other get together (Ford WAG) or elevating a brand new declare in opposition to them. Nonetheless, holding the provider liable as an obvious producer underneath the circumstances of this case might expose suppliers to claims they haven’t accounted for both by insurance coverage or of their B2B agreements throughout the manufacturing and provide chain. Let’s have a look at what the CJEU decides on this case.

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