EU Commission Proposes New Product Liability Directive

Dec 2, 2022 Benn-Ibler Rechtsanwälte

The European Commission has presented its much anticipated proposal for a new product liability directive. It is intended to replace the old and outdated Product Liability Directive, the initial version of which dates back to 1985.

Software is now a ‘product’

Whereas the concept of ‘product’ was previously limited to physical objects, in future there shall be explicit liability for software and so-called digital construction documents (i.e., digital versions or templates for an object).

Clarified concept of a ‘defect’

As before, a product is considered defective if it does not offer the expected safety, in particular due to the presentation of the product. The Commission now proposes further factors to be explicitly taken into account:

• The impact of a product's ability to learn (which is a clear reference to artificial intelligence)
• Security requirements, including security-related cybersecurity requirements
• Intervention by regulatory authorities (e.g. product recall orders)

Fulfilment service providers are liable

The new directive aims to ensure that an EU-based operator can invariably be held liable for products imported from third countries. In future, fulfilment service providers will also be held liable for damages if neither the manufacturer nor the importer or their authorised representative are established in the EU.

No more deductibles

The draft Directive no longer provides for a flat-rate deductible for damage to property (in Austria, this is EUR 500).

Burden of proof and disclosure

Although the injured party will still have to prove the defectiveness and its causality for the damage, the Directive provides for relief, as follows:

• The defendant must disclose evidence upon court order if the plaintiff proves the plausibility of a claim for damages.
• If the defendant fails to comply with this obligation, a product defect is presumed. The same applies if the product does not meet mandatory safety requirements or has obvious malfunctions.
• In the case of technical or scientific complexity, it may be excessively difficult for a plaintiff to prove their case. Here, the court may assume defectiveness and causation if the plaintiff proves a contribution of the product to the damage and the product was probably defective. The defendant may challenge the excessive difficulty of proof.

COM/2022/495 (28 September 2022)