If the plaintiff is a Corporation, What Rules Apply?
The Court of Appeal of Milan, in a very recent ruling on the subject of product liability, reiterated the principle according to which the Consumer Code does not apply if the person invoking consumer protection has suffered the damage in the exercise of an economic activity.
In Judgment No. 576 published on February the 27th 2024, the Fourth Civil Section of the Court of Appeal of Milan ruled on the operational limits of the Consumer Code (regarding the burden of proof, specifically) when the injured party acts to obtain compensation for a damage while carrying out a commercial and/or entrepreneurial activity.
The gravamen judge, called upon to decide on the liability of a well-known Manufacturer of industrial vehicles for a fire that occurred on a brand tractor, took the opportunity to clarify the boundary between cases governed by consumer discipline (Consumer Code) and those subject to the general discipline of the Civil Code, taking as a necessary reference not only the type of damage sought in compensation but also the quality of the injured party.
In the case at hand, the thermal event had completely destroyed the vehicle owned by a trucking company also damaging the property where the vehicle had been parked.
The Court of Appeals, adhering to previous rulings of the Supreme Court (e.g., Cass. Civ. 19414/2013), held that it had to exclude the applicability of the Consumer Code given that the damage caused by the alleged defective product had affected an asset used in the exercise of an economic activity (trucking, precisely).
Indeed, the recitals of Directive 85/374/EEC, when stating that all application references are restricted to the figure of “consumer”, are set to clarify that the regulations of the Consumer Code strictly apply only to consumers.
Moreover, the definition of compensable damage, as reproduced in almost identical terms in all consumer texts, refers to tragic events such as “… death …” or “… personal injury …” or to injuries such as the “… destruction of a thing other than the product provided that … normally intended for private use and consumption … and … for one’s own private use or consumption …” (see Art. 9 Directive cited above – Art. 123 Consumer Code), all of which are hypotheses that only a consumer/individual can complain about, certainly not individuals who interact in so-called “B2B” relationships.
Still on the subject of compensable damage, the jurisprudence of legitimacy had however long clarified that Presidential Decree 224/88, and therefore the Consumer Code, does not consider the so-called “commercial damage” produced on the part of the economic operator in the exercise of his business, but grants protection only for damage caused to the person or goods belonging to the consumer (see Cass. Civ. Sec. III, 07.05.2013, no. 9254 in Danno e Resp., 2015, 11, 1005).
On this point, the doctrine had also expressed itself by pointing out that “… The special legislation on defective product damage … is arranged for the compensation of the damage caused by the product to the physical integrity or other assets of the user and is not instead arranged, even if the defective product has damaged other assets of the purchaser, for the compensation of losses of a “commercial” nature … because in this case the buyer has been affected not already in his quality of user or consumer, but in the exercise of his economic activity and in the profits of such activity …” (see CARNEVALI, In the product bought and sold and the special legislation on product liability for defective products, and the boundaries of it, comments to a Cass. Civ. 07.05.2015, n. 9254, in Resp. Civ. e Prev., 2015, 5 page 1567).
In short, as clarified by the Court of Appeal of Milan, the applicability of the legislation on product liability finds its limitation in the party asserting the right to compensation. Such remarks have been shared by the cited doctrine for more than a decade, which has excluded the applicability of the Consumer Code, and consumer provisions in general, in relationships between non-consumers or between companies, economic operators and professionals (see CARNEVALI, Product Liability for Defective Products, Commentary on the Consumer Code, in Commentary on the Civil Code, Dei fatti illeciti, 2013, sub Art. 114, 573).