Italy, Tribunal of Naples, 9 January 2017 n. 159/2017

Identification of the case

• Article 130 of Legislative Decree n. 206/2005 (Consumer Code)

• Directive n. 1999/44

Summary of the case

The plaintiff, having purchased an automobile from the defendant (i.e. a retailer) realized, soon after the purchase, that the vehicle displayed several defects which, even after various attempts at repairing them, eventually rendered it impossible to use it and diminished its market value. Therefore, the plaintiff sued the retailer asking for a reduction of the price paid for the vehicle as well as compensation for the damages sustained.

• Civil judicial enforcement

Reduction of the price and compensation for the damages sustained.

The Tribunal dismisses the line of defense upheld by the defendant, arguing for his non-involvement in the productive process of the good. In particular, the Tribunal reminds that pursuant to the Consumer Code – Article 130 – the seller/retailer is liable for any defect displayed by the goods sold. Moreover, according to Article 5 § 3 of Directive n. 1999/44, when the defect displays itself within six months from the sale it is presumed that it existed at the moment of the sale. After giving proof that the good is defective and that the defects became apparent within six months from the sale, the consumer has fulfilled his/her burden of proof and it is for the seller to prove that the defect did not exist at the moment of the sale. In order to justify its reasoning over the burden proof sharing, the Tribunal makes an explicit reference to the CJEU decision in the Faber case (C-497/13), according to which – § 70-73 – the consumer is relieved of “the obligation of establishing that the lack of conformity existed at the time of delivery of the goods” once he/she has “alleged and furnished evidence that the goods sold are not in conformity with the relevant contract” and proved “that the lack of conformity in question became apparent, that is to say, became physically apparent, within six months of delivery of the goods”.

Role of the Charter and role of the general principles on enforcement

The Tribunal applied the Consumer Code in order to assess i) whether the retailer was liable for the defective good; ii) which remedies were at the disposal of the consumer. The application of the national legislation does not, in this decision, directly founds the reasoning over a general principle; instead it is the reference to the CJEU case-law which reassesses, on a general level, the importance of the principle of effectiveness in justifying the provisions regarding the burden of proof sharing.

• Effectiveness

The Tribunal refers to the CJEU decision in the Faber case, which laid out several interpretative guiding rules regarding the impact of the principle of effectiveness over the burden of proof sharing in defective goods’ disputes. The paragraphs referred to by the Tribunal do not directly invoke the principle of effectiveness and just point out that the consumer only has to prove that the good are not in conformity with the contract and that the defect became apparent within six months from the sale. Nevertheless, it can be argued that such an interpretative stance is justified by the necessity to offer an effective remedy to the consumer, since it could be impossible or excessively difficult for him/her to prove the cause of the defect.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-497/13, Faber

Conform interpretation with EU law as interpreted by the CJEU

The Judge referred to a CJEU decision in order to justify his interpretative stance by pointing out that it is compliant with the indications offered by the EU Law as interpreted by the CJEU.

To consolidate an interpretative stance as upheld by the CJEU and embraced by national judges.