62023CC0157
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 18 April 2024 (
1
)
Case C‑157/23
Ford Italia SpA
v
ZP,
Stracciari SpA
(Request for a preliminary ruling from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))
(Reference for a preliminary ruling – Liability for defective products – Directive 85/374/EEC – Article 3(1) – Concept of producer – Extension of liability to the supplier – Name, trade mark or other distinguishing feature of the supplier placed on the product and partially coinciding with that of the producer – Article 3(3) – Exemption of the supplier from liability – Identification of the producer – National rule imposing on the supplier the obligation to instigate the appearance of the manufacturer in pending proceedings)
1.
This request for a preliminary ruling concerns the liability of economic operators (producer and supplier) for the damage caused as a result of a traffic accident which took place in Italy and in which an airbag of a vehicle of the Ford brand did not work.
2.
At issue in the original dispute is whether, in that case, in accordance with Article 3 of Directive 85/374/EEC, (
2
) it should bethe manufacturer of the vehicle in Germany (Ford Werke Aktiengesellschaft; ‘Ford WAG’) or its supplier in Italy (Ford Italia SpA; ‘Ford Italia’) which should be held liable.
I. Legal context
A.
European Union law. Directive 85/374
3.
Article 1 states:
‘The producer shall be liable for damage caused by a defect in his product.’
4.
Article 3 provides:
‘1.   “Producer” means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer.
…
3.   Where the producer of the product cannot be identified, each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product. …’
5.
According to Article 5:
‘Where, as a result of the provisions of this Directive, two or more persons are liable for the same damage, they shall be liable jointly and severally, without prejudice to the provisions of national law concerning the rights of contribution or recourse.’
B.
Italian law. Decreto del Presidente della Repubblica of 24 May 1988, No 224 (
3
)
6.
Article 3(1) provides, in essence, that the producer is the manufacturer of the finished product or of one of its components, or the producer of the raw material. Under paragraph 3 of that article, any person who, by putting his or her own name, trade mark or other distinguishing feature on the product or its packaging, presents himself or herself as its producer is also regarded as such.
7.
Article 4, concerning the supplier’s liability, provides, in paragraph 1, that, where the producer is not identified, the supplier which has distributed the product in the course of its business is to be subject to the same liability if it has not, within three months of being requested to do so, informed the injured party of the identity and the address of the producer or person who supplied it with the product.
8.
Paragraph 5 of Article 4 provides that a third party designated as the producer or supplier may be summoned to appear in court in accordance with Article 106 of the Civil Procedure Code and that the supplier against which the claim is brought may be exempted from liability, if the designated person appears and does not contest the designation.
II. Facts, dispute and question referred for a preliminary ruling
9.
On 4 July 2001, ZP purchased a Ford Mondeo car from the company Stracciari, a dealer for the Ford brand having its registered office in Italy.
10.
The vehicle had been manufactured by Ford WAG, a company established in Germany which distributes its vehicles in Italy through Ford Italia. Ford Italia is an intra-EU importer and supplied the vehicle to the Ford dealer (Stracciari).
11.
Ford WAG and Ford Italia belong to the same group of companies.
12.
On 27 December 2001, ZP was involved in a traffic accident in which the vehicle’s airbag did not work.
13.
On 8 January 2004, ZP brought a claim for compensation for the damage suffered before the Tribunale di Bologna (District Court, Bologna, Italy). The claim was brought against Stracciari, in its capacity as a vendor, and against Ford Italia.
14.
Ford Italia appeared in the proceedings, stated that it had not manufactured the vehicle and designated Ford WAG as the producer. It argued that, as the supplier, it was not responsible for the defect in the vehicle and that, by identifying the producer, it was exempted from liability. (
4
)
15.
On 5 November 2012, the Tribunale di Bologna (District Court, Bologna) found Ford Italia liable in tort for the damage caused as a result of the defective product.
16.
Ford Italia appealed (
5
) against the judgment at first instance before the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy), which dismissed the appeal on 21 December 2018.
17.
Ford Italia brought a further appeal, against the judgment of the Corte d’appello di Bologna (Court of Appeal, Bologna), before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which refers the following question to the Court of Justice for a preliminary ruling:
‘Is an interpretation that extends the producer’s liability to the supplier, even where the latter has not physically placed its own name, trade mark or other distinguishing feature on the item, on the sole ground that the supplier has a name, trade mark or other distinguishing feature that is in whole or in part the same as that of the producer, consistent with Article 3[(1)] of [Directive 85/374]? If it is not consistent with that provision, why is that the case?’
III. Procedure before the Court
18.
The request for a preliminary ruling was received at the Court on 13 March 2023.
19.
Stracciari, (
6
) Ford Italia and the European Commission, which attended the hearing held on 8 February 2024, have lodged written observations.
IV. Assessment
A.
Preliminary observation
20.
The doubts of the referring court centre on the interpretation of the second half of Article 3(1) of Directive 85/374, in order to clarify where liability for the damage caused by a defective product lies. In particular, it wishes to know whether such liability may be imposed on a supplier which has not physically placed its name, trade mark or other distinguishing feature on the product, but whose identifying details are the same, in whole or in part, as those of the producer.
21.
That focus of the question referred, which is certainly limited, makes it necessary, above all, to consider the concept of the apparent producer (the person who presents himself or herself as such, by putting his or her name on the product) in relation to the circumstances of the case.
22.
The Court of Justice may, however, provide the referring court with other aspects of its interpretation of the system of liability established by Directive 85/374, where it considers it appropriate to respond to the approach advocated by Ford Italia, based on the application of Article 3(3) of that directive.
23.
Where that is the case, the Court will be called upon not only to address the definition of the concept of ‘producer’, whether actual or apparent (Article 3(1) of Directive 85/374), but also the exemption from liability of a supplier which has identified the actual producer (Article 3(3) of that directive).
B.
Complete harmonisation of the system of liability established by Directive 85/374
24.
According to settled case-law, ‘the margin of discretion available to the Member States to make provision for product liability is entirely determined by [Directive 85/374] itself’. (
7
)
25.
Having considered the wording, purpose and structure of Directive 85/374, ‘the Court … concluded that the Directive seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States’. (
8
)
26.
In particular, that is the case as regards ‘the class of liable persons against whom an injured person is entitled to bring an action under the system of liability laid down by Directive 85/374 [which] is defined exhaustively in Articles 1 and 3 of that directive. Since that directive seeks to achieve complete harmonisation in the matters regulated by it, its determination in those articles of the class of liable persons must be regarded as exhaustive and cannot be made subject to the setting of additional criteria which do not follow from the wording of those articles’. (
9
)
27.
Apart from the person who manufactures a finished product, ‘it is only in the cases exhaustively listed that other persons can be considered to be a producer, namely, any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer (Article 3(1) of the Directive), any person who imports a product into the Community (Article 3(2) of the Directive) and the supplier who, where the producer of the product cannot be identified, does not inform the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product (Article 3(3) of the Directive)’. (
10
)
C.
Concept of apparent producer: Article 3(1) of Directive 85/374
28.
In the present dispute, the claim was brought against the supplier of the vehicle (Ford Italia) in its capacity as producer. The claimed defect related to a vehicle of the Ford brand, manufactured in Germany by Ford WAG and supplied in Italy by Ford Italia, an intra-EU importer of those vehicles.
29.
As Ford Italia does not manufacture vehicles, but rather imports them from another Member State and distributes them in Italy, it could only be classified as a producer under Article 3(1) of Directive 85/374 if it displayed the characteristics of an apparent producer, that is, of a ‘person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer’.
30.
The referring court asks what treatment should be given to a situation in which:
–
on the one hand, the supplier has not physically placed its name, trade mark or other distinguishing feature on the product;
–
on the other hand, the name of the supplier and of the producer are the same in so far as both have the distinguishing feature ‘Ford’, which appears on the vehicle and in the name of both operators.
31.
For the court a quo, the response to that situation may be determined either by a strict interpretation of ‘putting his name’, or by a broader interpretation. Both, in principle, seem acceptable to that court: (
11
)
–
the second, broader interpretation, in the light of national case-law, would take into account the requirement to protect consumers;
–
the first is restrictive and points to an adjustment in the weighting of the interests of the different persons involved in the process of producing and distributing the product.
32.
The reasons that I shall set out below lead me towards advocating for the broaderof the interpretative approaches put forward by the referring court. I accept, however, that there are also sound arguments in favour of the other approach. (
12
)
33.
The extension of the concept of producer to include the apparent producer flows from the intention expressed in the fourth recital of Directive 85/374: ‘protection of the consumer requires that … liability should extend … to persons who present themselves as producers by affixing their name, trade mark or other distinguishing feature’. With that objective, ‘the EU legislature intended to adopt a broad interpretation of the concept of “producer”’. (
13
)
34.
The Court has ruled on the ‘no-fault liability’ (
14
) of the apparent producer in the judgment in Keskinäinen Vakuutusyhtiö Fennia, a case in which the facts bear some similarity to those of the present request for a preliminary ruling. (
15
)
35.
In that case, the claim for compensation for the defective product (a coffee machine by the Phillips Saeco brand, sold in Finland) was brought against Koninklijke Philips, despite the fact that the product had been manufactured in Romania by Saeco International Group SpA, a subsidiary of Koninklijke Philips.
36.
It was then disputed whether Koninklijke Philips displayed the characteristics of an apparent producer, in view of the fact that ‘the Philips and Saeco logos, which are trade marks registered by Koninklijke Philips, were affixed to that coffee machine and to its packaging. In addition, the coffee machine bore a CE marking which included the Saeco logo, an address in Italy and the words “Made in Romania”. Koninklijke Philips has a subsidiary in Finland, Philips Oy, which markets in the latter Member State household appliances bearing the Philips trade mark, including the coffee machine at issue’. (
16
)
37.
Thus, from the statements made by the Court in that judgment, the following may be highlighted:
–
‘by putting his name, trade mark or other distinguishing feature on the product … the person who presents himself as a producer gives the impression that he is involved in the production process or assumes responsibility for it. Accordingly, by using such particulars, that person is effectively using his reputation in order to make that product more attractive in the eyes of consumers which, in return, justifies his liability being incurred in respect of that use’; (
17
)
–
‘since, first, several persons may be regarded as producers and, secondly, consumers may bring claims against any one of them, the search for a single liable person, that is to say, “the most appropriate person” against whom consumers should assert their rights, is not, contrary to what the referring court suggests, relevant’. (
18
)
38.
The question now raised by the Corte di cassazione (Supreme Court of Cassation) relates, as I have already said, to the scope of the expression ‘putting his own name’. In particular, it asks whether that concept (i) refers solely to the physical insertion of a distinguishing element by a person other than the producer, with the intention of exploiting any ambiguity; or (ii) also includes a mere unintended similarity between the identifying details.
39.
In order to answer that question, it is necessary to consider the manner in which the defective product is presented and sold. From that perspective, all the evidence seems to indicate that Ford Italia supplies Italian consumers with vehicles backed up by a distinguishing element (Ford) whose prestige and reputation, objectively and fundamentally, give rise to greater confidence on the part of the consumer. The supplier thereby takes advantage of the reputation of the Ford brand, which it includes in its own company name (Ford Italia), in order to sell vehicles.
40.
Just as in the case which gave rise to the judgment in Keskinäinen Vakuutusyhtiö Fennia, where the signs of the supplier (Ford Italia) are similar (
19
) to those of the actual producer (Ford WAG) and those of the vehicle (Ford Mondeo), in my opinion, for the protection of the public, the supplier may be classified as an apparent producer, for the purposes of Article 3(1) of Directive 85/374.
41.
It is true that the supplier does not physically place its name on the product, since it comes with that name already on it from the factory. However, I believe that, from the position of the consumer, if the same name (Ford) appears on the vehicle and in the company name of the person supplying it, the purchaser may have the impression (
20
) that the supplier assumes the position (and the liability) provided for in Article 3(1) of Directive 85/374. In that situation, the consumer cannot be expected to discover, by his or her own means, who the (actual) producer is, where that producer is distinct from the supplier which presents itself with those characteristics.
42.
The key factor, in cases such as the one at hand, is the three-way similarity of the name of the supplier (Ford Italia), the name which appears on the product (Ford Mondeo) and the name of the manufacturer (Ford WAG). That similarity induces the consumer to presume that the quality of the vehicle is backed up by a supplier which, precisely by ‘using his reputation in order to make that product more attractive in the eyes of consumers’, (
21
) presents itself as the apparent producer and, consequently, acquires the corresponding liability.
43.
From that perspective, I do not think that it is particularly relevant whether the supplier attempts to exploit any supposed ambiguity or has deliberately chosen its name in order to take advantage of the prestige of the distinguishing element which is characteristic of the actual manufacturer (with which, furthermore, it has corporate ties).
44.
What is decisive, I repeat, is that, if the vehicle distributed by the supplier includes the distinguishing feature which is characteristic of the name of both (‘Ford’), it will give rise to the same confidence on the part of the consumer (and the general public) as if the manufacturer, whose name is the same as that of the supplier, sold it directly, without the intermediation of another economic operator.
45.
In that situation, the consumer may reasonably think, without needing to make further enquiries, that he or she is purchasing the vehicle from a supplier which presents itself as its (apparent) producer. Consequently, the consumer is ‘relieved of the burden of having to determine the actual producer in order to bring claims for damages’. (
22
)
46.
It may be objected that that interpretation is excessively broad and goes beyond the intention of Article 3(1) of Directive 85/374, which, in establishing liability for the defective product, focuses on its manufacturer and not on its distributor. I do not, however, think that such an objection, even if there are arguments in its favour, should prevail over the dematerialised reading that I am proposing of the concept of apparent producer, within the meaning of that provision.
47.
Thus, I agree with the Commission that the status of apparent producer cannot be limited to a person who physically ‘puts’ his or her distinguishing feature on the product: that status ‘may equally be the result of a simple correspondence between the name of the supplier and the name of the product, above all where, as occurs in this case, that correspondence is not fortuitous, but rather due to the fact that the supplier resells in Italy the vehicles of the Ford brand which it itself buys from the producer Ford WAG’. (
23
)
48.
Based on that premise, a person who has suffered damage as a result of a defective product may seek compensation both from the apparent producer and from the actual producer, as they are jointly and severally liable.
49.
From Article 5 and from the fifth recital of Directive 85/374, ‘it follows … that the liability of a person who presents himself as a producer is on the same level as that of the actual producer, and that the consumer may freely choose to claim full compensation for damage from any one of them, since they are liable jointly and severally’. (
24
)
50.
The foregoing considerations make even more sense in the light of the fact that, in the present case, the supplier and the actual producer are part of the same group of companies, such that the first participates in the distribution chain for the cars manufactured by the second, both of them operating under the Ford emblem.
51.
I reiterate that the supplier of the vehicle (Ford Italia) is linked to the manufacturer (Ford WAG). Ford Italia is a regional division of the production and distribution network for Ford vehicles, under the direction of and coordinated by a parent company.
52.
In that context, the consumer opts to purchase a vehicle from Ford Italia precisely because of the confidence which its origin inspires in him or her; that is, because it is a vehicle marketed by an official supplier which presents itself to the consumer (or, at least, causes the consumer to form that impression) as responsible for the quality of the product. The purchaser goes to a supplier in the Ford network, which trades under precisely that name (Ford Italia).
53.
With regard to the relevance of links of that kind between the producer and the supplier, albeit in a different context, the Court in the judgment in O’Byrne held as follows:
–
‘When one of the links in the distribution chain is closely connected to the producer, for example, in the case of a wholly owned subsidiary of the latter, it is necessary to establish whether it is a consequence of that link that that entity is in reality involved in the manufacturing process of the product concerned.’ (
25
)
–
‘The examination of such a close relationship must not be influenced by the question whether or not distinct legal persons are involved. On the other hand it is of relevance whether those are companies carrying out different production activities or are, on the contrary, companies one of which, i.e. the subsidiary company, acts simply as a distributor or depository for the product manufactured by the parent company. It is for the national courts to establish … whether the links between the producer and another entity are so close that the concept of producer … also includes that latter entity …’. (
26
)
54.
At issue in the O’Byrne case was whether, in relation to Article 11 of Directive 85/374, the ‘put[ting of the product] into circulation’ had taken place, which is the point from which the limitation period (10 years) relating to the rights of the injured person runs.
55.
It is true that in the judgment in O’Byrne the purpose of the Court’s reflections on the relationship between the parent company and the subsidiary was to clarify when the defective product was put into circulation. However, what seems relevant to me as regards the present request for a preliminary ruling is that the judgment in O’Byrne allows for a broad interpretation of the concept of producer which includes companies that are linked to each other and involved in the marketing process for the product, whether or not they are distinct legal persons. (
27
)
56.
That broad interpretation could not, however, result in an undifferentiated attribution of liability for the damage resulting from the defective product to any participant in the manufacturing and marketing process for that product. The Court rejected such an undifferentiated extension, in relation to Danish legislation, in the judgments in Skov and Bilka (
28
) and Commission v Denmark. (
29
)
57.
From that perspective, the analysis of the ties between Ford WAG and Ford Italia, which falls within the competence of the referring court, may reveal a particularly close connection which, combined with the fact that the shared name (Ford) is used in the company names of both and also on the defective product itself, tilts the balance in favour of the application of the second half of Article 3(1) of Directive 85/374.
58.
What has been set out thus far responds to the literal wording of the question of the referring court: in the present dispute, there would be an apparent producer (Ford Italia) whom the injured person could pursue for liability for the damage resulting from the defective product, on the basis of Article 3(1) of Directive 85/374.
D.
Impact of Article 3(3) of Directive 85/374
59.
In the preceding points, I have addressed the interpretational difficulties raised by the concept of apparent producer. In the following points, I shall refer to Ford Italia’s statements regarding the application to the dispute of Article 3(3) of Directive 85/374, the wording of which leads that company to infer that it is exempt from liability. (
30
)
60.
Before the Court of Justice, Ford Italia submits that the referring court has not taken into account the fact that ‘the consumer had been informed in good time of the identity and address of the producer and, nevertheless, had chosen not to proceed against it’. (
31
)
61.
Ford Italia deduces from that fact that the issue is not one of ‘protecting a consumer who, through no fault of his own, was confused by the mixed use of distinguishing features by persons operating within a single group of companies, but rather of a consumer who refuses to ask the court for permission to call for the intra-EU producer, whose identity and location he is perfectly aware of, to appear in the proceedings …’. (
32
)
62.
Article 3(3) of Directive 85/374 provides for the hypothetical situation ‘where the producer of the product cannot be identified’. In such a situation, ‘each supplier of the product shall be treated as its producer unless he informs the injured person, within a reasonable time, of the identity of the producer or of the person who supplied him with the product’.
63.
In my opinion, the conditions necessary for the application of Article 3(3) of Directive 85/374 do not arise in this case: there was no ‘unknown producer’, if it is accepted that Ford Italia was the apparent producer, in the terms set out above. Moreover, the referring court does not in any event ask the Court of Justice to interpret that provision, which indicates that it does not consider it relevant to the dispute. (
33
)
64.
As the Commission maintained at the hearing, Article 3(3) of Directive 85/374 starts from the assumption that the producer (whether actual or apparent) cannot be identified. The concept of producer in Article 3(3) encompasses both the actual producer and the apparent producer: where either of the two is identified, the provision becomes inapplicable.
65.
Secondarily, I shall comment on the impact of Article 3(3) of Directive 85/374 on the response to the question referred.
66.
The Court has interpreted that provision, inter alia in its judgment of 2 December 2009, (
34
) as follows:
–
‘that provision should be understood as referring to the situation in which, taking into account the circumstances of the case, the person injured by the allegedly defective product could not reasonably have identified the producer of that product before exercising his rights against its supplier’; (
35
)
–
‘in such a case, it follows from Article 3(3) of Directive 85/374 that the supplier is to be treated as a “producer” if he has not informed the injured person, within a reasonable time, of the identity of the producer or his own supplier’; (
36
)
–
the transmission of information is not unconditional, since ‘the mere fact that the supplier of the product in question denies being its producer cannot, where that supplier has failed to couple that denial with information about the identity of the producer …, suffice for that supplier to be treated as having informed the injured person of the facts referred to in Article 3(3) of Directive 85/374 or, therefore, for it to be ruled out that it could be treated as a “producer” under that provision’; (
37
)
–
as regards ‘the condition relating to the supply of such information within “a reasonable time”, within the meaning of Article 3(3) of Directive 85/374, [it] involves the requirement that the supplier, against whom proceedings are brought by an injured person, inform the latter, on its own initiative and promptly, of the identity of the producer’. (
38
)
67.
Accordingly, Article 3(3) of Directive 85/374 only exempts the supplier from liability (when the producer cannot be identified) where the supplier informs the injured party, within a reasonable time, of the identity of the producer.
68.
Directive 85/374 does not, however, specify the mechanisms (procedural or any other kind) to be employed in order to provide that information. Therefore, in principle, the communication of the identity of the actual producer to the injured person, within a reasonable time, would exempt the supplier from liability.
69.
However, where the transmission of information takes place in the course of legal proceedings which are already under way, (
39
) Directive 85/374 does not prevent national law from imposing on any of the parties the obligation to call for the person identified as the actual producer to appear in those proceedings.
70.
As mentioned above, that aspect is not referred to in Article 3(3) of Directive 85/374, but may be relied on by a Member State with a view to ensuring that the identification of the actual producer is reliable. Such a procedural obligation falls within the scope of the procedural autonomy of the Member States and there is no reason for it to conflict with Directive 85/374.
71.
That procedural duty may be based on the aim of protecting the interests of the consumer, at the same time that the person having the status of producer is specifically identified. If a supplier which identifies the actual producer is automatically exempted from liability, the consumer could be left in a precarious situation: the proceedings in which that identification was made would come to an end (due to the absence of any basis on which to sue the defendant) and the injured person would have to start new proceedings against the designated producer, running the risk that the latter would, in turn, deny being the producer.
72.
In order to avoid the consumer having to take that double route, (
40
) it seems reasonable for the national legislature to provide that everything should be decided in the same action and, to that end, to provide for the compulsory intervention of the relevant person (calling for that person to appear in the proceedings) as an appropriate mechanism. Once again, it falls to the law of each Member State to establish how that intervention will take place. (
41
)
73.
Once the supplier against whom the claim is brought has identified the producer in the course of an action, the national legal system may, without distinction, opt to (a) impose on the claimant the obligation of calling for the producer to appear in the proceedings, for example, by expanding or adding to his or her claim; (b) impose that obligation on the defendant, such that it is the defendant who has to request that the producer be summoned to appear.
74.
Logically, it falls within the jurisdiction of the referring court to interpret its national law, in order to discern which solution, of the two mentioned above or any other, the Italian legislature has adopted. As reflected in the order for reference, the Corte d’appello di Bologna (Court of Appeal, Bologna) interpreted Article 4(5) of Presidential Decree No 224 of 24 May 1988 (which refers to Article 106 of the Civil Procedure Code) in a manner with which the Corte suprema di cassazione (Supreme Court of Cassation) does not agree. (
42
)
75.
In the hypothetical situation in which the national rules required that, where the supplier provides the injured person with the information in the course of an action already underway, it must, mandatorily, be followed by a call for the actual producer to appear in the proceedings, I do not think that Article 3(3) of Directive 85/374 would be infringed and nor do I think that the principles of effectiveness and equivalence would suffer:
–
That solution does not compromise the effectiveness of the rights conferred by Directive 85/374, but rather contributes to ensuring an appropriate balance of interests. The rights of the injured person and of the supplier are guaranteed, as the court itself, in a single action, will have before it all of the legal relationships linking all of the interested parties. Thus, it may, if the information is correct, release the supplier from liability and impose that liability on the actual producer (which, in procedural terms, would have succeeded the supplier against whom the claim was initially brought).
–
With regard to the principle of equivalence, the solution provided for in Italian procedural law as regards the liability of the producer for defective products seems to be the same as that established for other cases of compulsory intervention in Article 106 of the Italian Civil Procedure Code, (
43
) and it applies to all of those involved in disputes relating to that subject matter.
76.
In summary, a decision whereby Ford Italia had to bear the negative consequences of failing to comply with its possible procedural obligations, where those are imposed by national law, would not be inconsistent with Article 3(3) of Directive 85/374. (
44
)
V. Conclusion
77.
In the light of the foregoing considerations, I propose to respond to the Corte suprema di cassazione (Supreme Court of Cassation, Italy) as follows:
Article 3(1) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products
must be interpreted as meaning that the supplier of a vehicle which, even where it has not physically placed its own name, trade mark or other distinguishing feature on the vehicle, presents itself to consumers as its producer may be regarded as such, taking account of the fact that the name of the supplier is the same, in the most relevant term, as the name, trade mark or other distinguishing feature of the actual producer, that both belong to the same group of companies and that the allegedly defective vehicle bears the trade mark which is characteristic of both.
(
1
)	Original language: Spanish.
(
2
)	Council Directive of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29).
(
3
)	Decreto del Presidente della Repubblica del 24 maggio 1988, n. 224. Attuazione della direttiva CEE n. 85/374 relativa al ravvicinamento delle disposizioni legislative, regolamentari e amministrative degli Stati membri in materia di responsabilità per danno da prodotti difettosi, ai sensi dell’art. 15 della legge 16 aprile 1987, n. 183 (Presidential Decree No 224 – transposition of Directive 85/374, in accordance with Article 15 of Law No 183 of 16 April 1987) (Ordinary Supplement to GURI No 146, of 23 June 1988). Those provisions are incorporated into the Consumer Code (Decreto legislativo n. 206, Codice del consumo, a norma dell’articolo 7 della legge 29 luglio 2003, n. 229 (Legislative Decree No 206 approving the Consumer Code in accordance with Article 7 of Law No 229 of 29 July 2003), of 6 September 2005 (Ordinary Supplement to GURI No 235, of 8 October 2005)): the rules contained in Articles 3 and 4 of Presidential Decree No 224 were included in Article 3(1)(d) and Article 116 of the Consumer Code.
(
4
)	According to the order for reference, Ford Italia’s defence was, in essence, based on the fact that the supplier is not liable for the defect if the producer has been identified and its identity has been communicated to the consumer, as in the present case.
(
5
)	In its appeal before the Corte d’appello di Bologna (Court of Appeal, Bologna), Ford Italia maintained that the obligation (which the court at first instance had attributed to it) to call for the producer to appear in the proceedings did not exist, as it was sufficient for it to provide its identifying details. It also argued that the judge at first instance had given a decision ultra petita, in so far as he had delivered a judgment against Ford Italia as the supplier of the vehicle, when the claimant had sought judgment against it as the producer.
(
6
)	That company, in its written observations, confined itself to stating that it had, by means of a final decision having the force of res judicata, been excluded from the class of potentially liable persons and that, consequently, it was not commenting on the request for a preliminary ruling. At the hearing, however, it did also refer to the substance of the dispute.
(
7
)	Judgment of 10 January 2006, Skov and Bilka (C‑402/03, EU:C:2006:6, ‘the judgment in Skov and Bilka’, paragraph 22 and the case-law cited).
(
8
)	Ibid., paragraph 23, with reference to the judgments of 25 April 2002, Commission v France (C‑52/00, EU:C:2002:252, paragraph 24), and of 25 April 2002, Commission v Greece (C‑154/00, EU:C:2002:254, paragraph 20).
(
9
)	Judgment of 24 November 2022, Cafpi and Aviva assurances (C‑691/21, EU:C:2022:926, paragraph 35), citing the judgment in Skov and Bilka, paragraphs 32 and 33, and the judgment of 7 July 2022, Keskinäinen Vakuutusyhtiö Fennia (C‑264/21, EU:C:2022:536, ‘the judgment in Keskinäinen Vakuutusyhtiö Fennia’, paragraph 29).
(
10
)	Judgment of 9 February 2006, O’Byrne (C‑127/04, EU:C:2006:93, ‘the judgment in O’Byrne’, paragraph 37).
(
11
)	Order for reference, paragraphs 8 and 9.
(
12
)	In judgments prior to that request for a preliminary ruling (of 29 October 2019, No 27596, Div. III, and of 30 August 2019, No 21841, Div. III), the Corte suprema di cassazione (Supreme Court of Cassation) had rejected the notion that Porsche Italia S.p.A. and General Motors Italia S.r.l, companies which distributed the allegedly defective vehicles (a Porsche 911 Carrera, in the first case, and an Opel Tigra, in the second), were liable, on the basis of being apparent producers, for the damage caused by the defects in those vehicles.
(
13
)	The judgment in Keskinäinen Vakuutusyhtiö Fennia, paragraph 31.
(
14
)	The judgment in Skov and Bilka, paragraph 45 and first indent of the operative part.
(
15
)	The judgment has given rise to various commentaries by legal scholars. See, inter alia, Van Gool, E., ‘ECJ Case Fennia v. Koninklijke Philips NV (C‑264/21): Towards a broader interpretation of the “apparent producer”, “quasi-producer” or “self-brander” subject to EU product liability’, Revue européenne de droit de la consommation/European Journal of Consumer Law, ‚No 3, 2022, p. 287; and Verhoeven, D., ‘Het begrip “schijnproducent” uit de Richtlijn Productaansprakelijkheid verduidelijkt (?) door het Hof van Justitie’, Droit de la consommation/Consumentenrecht_vol. 139, No 2, 2023..
(
16
)	The judgment in Keskinäinen Vakuutusyhtiö Fennia, paragraph 9.
(
17
)	Ibid., paragraph 34.
(
18
)	Ibid., paragraph 35.
(
19
)	The similarity, even if it is partial, resides in precisely the most characteristic element, namely the term Ford.
(
20
)	The impression referred to in the judgment in Keskinäinen Vakuutusyhtiö Fennia, paragraph 34.
(
21
)	The judgment in Keskinäinen Vakuutusyhtiö Fennia, paragraph 34.
(
22
)	The judgment in Keskinäinen Vakuutusyhtiö Fennia, paragraph 37.
(
23
)	Written observations of the Commission, paragraphs 24 and 25. The Commission, in order to avoid possible abuses, later (paragraphs 32 and 33 of its observations) qualifies its remarks, when it comes to suppliers which are not involved in the marketing process.
(
24
)	The judgment in Keskinäinen Vakuutusyhtiö Fennia, paragraph 32.
(
25
)	The judgment in O’Byrne, paragraph 29.
(
26
)	Ibid., paragraph 30.
(
27
)	A reference to that question already appeared in the explanatory memorandum which accompanied the Commission proposal of 9 September 1976 on what would then become Directive 85/374. In the part of that memorandum devoted to the concept of apparent producer (the then Article 2 of the future directive), the Commission maintained that a close economic link between ‘the actual producer and the bulk buyer who represents himself to the public as the sole producer must result in liability on the part of the dealer in this case’. See the document in Bulletin of the European Communities, supplement 11/76, ‘Product liability’, available at http://aei.pitt.edu/4573/1/4573.pdf.
(
28
)	‘After weighing up the parts played by the various economic operators involved in the production and distribution chain … the choice was made to allocate liability for damage caused by defective products in principle to producers, and only in certain defined cases to importers and suppliers, in the legal system established by [Directive 85/374]’ (paragraph 29). ‘Articles 1 and 3 of the Directive are not thus confined to regulating the liability of the producer of a defective product, but determine which of the operators who have taken part in the manufacture and marketing processes will have to assume the liability established by the Directive’ (paragraph 30).
(
29
)	Judgment of 5 July 2007 (C‑327/05, EU:C:2007:409). The Court finds the Danish provisions according to which the intermediary suppliers involved in a distribution chain are regarded as liable on the same terms as the producer to be contrary to Article 3(3) of Directive 85/374.
(
30
)	Ford Italia proposes a response to the question referred which adheres to the content of that provision, but also introduces considerations relating to the communication which, as the defendant, it sent to the injured person to inform him of the identity of the actual producer.
(
31
)	Written observations of Ford Italia, paragraph 13.
(
32
)	Ibid., paragraph 14. It emerges from the order for reference that the claim was brought against Ford Italia as the ‘producer’ and that, at the first opportunity it had before the Tribunale di Bologna (District Court, Bologna) it made the purchaser aware of the identity of the ‘actual producer’ of the vehicle.
(
33
)	The Commission emphasises that fact in paragraph 16 of its written observations, adding immediately afterwards (paragraph 17) that it will not comment on that aspect of the original dispute.
(
34
)	Aventis Pasteur (C‑358/08, EU:C:2009:744).
(
35
)	Ibid., paragraph 55.
(
36
)	Ibid., paragraph 56.
(
37
)	Ibid., paragraph 57.
(
38
)	Ibid., paragraph 58.
(
39
)	I do not believe that the requirement to transmit that information could be regarded as satisfied by the sole reference, in the contractual documents relating to the sale of the vehicle, to Ford WAG next to an identification code for the vehicle.
(
40
)	In the judgment in Skov and Bilka, paragraph 36, the Court warns against ‘… a multiplicity of actions, which is precisely what the direct action against the producer available to the injured person under the conditions laid down in Article 3 of the Directive is intended to avoid (see [the judgment of 25 April 2002,] Commission v France, [C‑52/00, EU:C:2002:252,] paragraph 40, and paragraph 28 above)’.
(
41
)	The judgment in O’Byrne, paragraph 34: ‘[Directive 85/374] does not determine the procedural mechanisms which it is appropriate to apply when a victim brings an action for liability for defective products and makes an error as to the identity of the producer. It is therefore, as a rule, for national procedural law to determine the conditions in accordance with which one party may be substituted for another in the context of such an action.’
(
42
)	Order for reference, paragraph 5.1. In any event, as I have already emphasised, the referring court – in my opinion, with good reason, as it is a matter purely of national law – does not include that matter in the question referred.
(
43
)	That article regulates participation in proceedings at the request of a party, and provides that any of the parties may call for a third party to appear in the proceedings, where that party believes the cause of action also to apply to that third party or there is a guarantee relationship.
(
44
)	I do not believe that the fact that Ford WAG and Ford Italia belong to the same group of companies should affect the scope of the protection afforded to the injured person in accordance with Directive 85/374.