As the lawyers Dr. Arun Kapoor and Prof. Dr. Thomas Klindt from our partner Noerr report, the EU Commission presented its long-awaited draft for a new product liability directive on 28 September 2022. “The new draft certainly packs a punch,” comments Noerr. Accordingly, the industry must prepare for a massive tightening of product liability in Europe. In future, product liability will also extend to economic actors for whom the issue has not played a role so far.
In future, European product liability will apply not only to movable property and electricity, but also to digital production files and software (including artificial intelligence/AI systems). Requirements for the cyber security of the product must also be taken into account in the future.
Liability issue: In future, anyone who "substantially alters" a product within the meaning of product safety law will be liable in the same way as a manufacturer, namely depending on fault. Manufacturers may also be liable if they can continue to control their products after being placed on the market (e.g. through safety software updates). In the future, authorised representatives of manufacturers as contemplated by product safety law and fulfilment service providers may likewise be liable for product defects, as in the case of manufacturers.
On the other hand, the previous facilitation of evidence for injured parties is significantly expanded: “The required causal connection between product defect on the one hand and loss or damage on the other will be presumed in favour of the injured party in the future if the damage was caused by ”obvious malfunction of the product during normal use”. The few exclusions of liability in favour of economic operators are restricted. In addition, companies can be forced to hand over evidence (e.g. design documents) that the plaintiff needs to substantiate its claims. The EU Representative Actions Directive and the introduction of a new remedy for performance allow for collective interests’ claims for compensation, repair or price reduction.
The draft provides for a very short implementation period of 12 months from entry into force for the member states.
The example of the EU Product Liability Directive shows that an optimal Legal monitoring is necessary as an existential risk precaution in order to protect you under product law. If you have any questions, the trade-e-bility advisory team will be happy to help you via beratung@trade-e-bility.de or +49/40/75068730-0.
“Cybersecurity – Impact on Product Safety and Recall Practice” is also the topic of our panel event “The Future of Product Responsibility” at the Tipi am Kanzleramt theatre in Berlin on 8 November. Further particulars and registration details are available here
