La sicurezza generale dei prodotti e la responsabilità del produttore nel diritto italiano ed europeo

The article offers an analysis, on the one hand, of legislative decree 21-5-2004 no. 171, containing the law giving effect to directive 3-12-2001 no. 95 relating to general product safety and now incorporated in the consumer code, following legislative decree 6-9-2005 no. 206, and, on the other hand, attemps to give a full account of the system of consumer protection in regard to defective products by means of a comparison between the preventive protection offered by the penal provisions of 171/2004 and the compensatory regime contained in d.p.r. 24-5-1988 no. 224 on producer's liability. These two legal measures are complementary inasmuch as the law on general product safety does not turn on establishing damage, but rather imposes prior duties on the producer in terms of guaranteeing the safety of products brought onto the market and of measures (withdrawall, recall, etc.) to be undertaken once the product is on the market in order to counteract those risks not previously eliminated; penal and administrative sanctions are provided. The producer liability rules, by contrast, presuppose establishing damage and aim to make restitution by way of compensation, according to objective criteria. Judgments place particular importance on an appraisal of the risks to product safety arising from uses to which the goods can reasonables expect to be put, taking account of the kinds of consumers involved, especially minor and old people. The two regimes overlap, however, in terms of measures to eliminate those product risks that were unknown to producer when the product was put into circulation and of the obligation that arise once the consumer has adverted the producer, violation of which can lead to additional liability in the form of sanctions for illegal omission, not contemplated in d.p.r. 224/1988, where the wrongfull conduct has occasioned damage to the consumer.