The Final Seller’s Right of Recourse in a French-Italian Perspective

This article deals with the action of recourse stressing the importance of a comparative view. Although the main priority of Directive 1999/44/EC’s is to give recognition to consumer protection, this achievement must be always considered in harmony with other targets of the aforementioned EU legislative measure, such as the modernization of the Member States’ laws, the simplification of the overall discipline applicable to contracts of sale, and the approximation, at the EU level, of the Member States laws relating to the private law area. Therefore, it is on the light of the above that the action of recourse, namely a institution that does not seem to involve – primarily and directly – consumers’ position but rather business parts of the contract of consumer sale (retailers and his/her predecessor), must be pondered. This approach is even more truth if the recourse is evaluated, on the one side, looking at the Italian legislature, and on the other, at the French one. Indeed, although the Italian legal system has structured the action under a right of redress in order to overcome the limitations to the accountability of the producer in accordance to art. 1495 of the Italian civil code, he has not, simultaneously, filled the gaps of protection emerging in the event of retailer insolvency. Thus, no legal action can be undertaken due to lack of the constituent elements, when the final seller in a financial state of insolvency cannot satisfy the claims of the consumer based upon proven lack of conformity. In France, instead, through the action directe, the case law, which was developed in the framework of the Code Civil, has allowed the buyer to act against any previous link in the distribution chain, and as a consequence the consumer is able to act not only against the dealer, but also against the wholesaler or retailer. All professional members of the contractual chain, therefore, are liable to the purchaser, although the seller effectively summoned to court has the right to be compensated from the part of the chain who is really liable for the defect occurred. The core idea that guides the present essay is, therefore, to reflect on the different solutions apparently adopted in Italy and France in matter of action of recourse to understand which appear to be the better orientation.