The new Product Liability Directive (PLD) was published in the Official Journal of the European Union on 18 November 2024 and comes into force on 8 December 2024, resp. 20 days later. As the law firm Noerr reports, the Product Liability Directive brings with it considerable tightening and new obligations. National legislators have two years to transpose these changes into national law (Germany: Product Liability Act / Produkthaftungsgesetz). These are the key points of the reform:
Extension of the scope of application:
- Software, including artificial intelligence, now falls under the product concept, with the exception of free open source software without a commercial background.
- Integrated or connected digital services, such as voice assistants, are included.
New error term:
- The new Product Liability Directive structures the concept of defect as a combination of a person's safety expectations and statutory safety requirements.
- The issue of cyber security plays a central role. The producer is responsible for wilful damage, e.g. by a third party ("hacker").
- There is an interlocking with product safety law.
- Recalls or official interventions can classify a product as defective.
- Producers must also consider the control of products after they have been placed on the market.
Extended liability, extended liability periods:
- In addition to producers (of products or partial products), importers or authorised representatives of the producer, fulfilment service providers or online platforms are also liable if the liable party cannot be identified.
- Damage (e.g. destruction or falsification) to data that is not used for professional purposes is considered eligible for compensation.
- Financial liability limits for economic operators will be abolished, as will the current deductible. In addition, the maximum liability period (expiry period for the right to compensation) will be extended from 10 to 25 years if personal injury only becomes recognisable after a delay.
Facilitated enforcement of claims:
- Claimants benefit from presumption rules and a duty of disclosure of evidence by the defendant.
- If the defendant does not fulfil the disclosure obligation, presumption rules apply in favour of the claimant. Such a far-reaching duty of disclosure, which aims to help the claimant in the event of a lack of evidence, is not yet provided for in German civil procedure law.
- Collective actions supplement the enforcement options.
Conclusion: The directive significantly tightens product liability, in particular due to the extended areas of liability and simplified possibilities for legal action. Companies are facing new challenges, as many terms are open to interpretation and there is a threat of more extensive liability.
This example shows that optimised Legal Monitoring is necessary as an existential risk precaution in order to protect you in terms of product law.
The trade-e-bility consulting team will be happy to provide you with solutions for securing your sales in the areas of product liability, product safety and product conformity: +49/40/750687-300 or beratung@trade-e-bility.de
