The Directive on Liability for Defective Products (Directive 85/374/EEC, hereinafter ‘the Directive’) has ensured, for more than three decades, that producers assume responsibility for the manufacture of defective products vis-à-vis consumers. When adopted in 1985, the directive was a bold and modern instrument that required significant adaptations to the civil codes of the Member States.
The directive was one of the first pieces of EU legislation expressly designed to protect consumers. It introduced the concept of strict liability according to which producers are responsible for defective products, regardless of whether the defect is intentional or not. The directive also aims to contribute to economic growth by creating a stable and legal environment of equal competition, enabling companies to place innovative products on the market.
The Directive complements EU legislation on product safety and the so-called ‘New Approach’ adopted in this field. Introduced at the same time as the directive, the ‘New Approach’ aims to prevent accidents from occurring by establishing common safety rules2 that ensure the smooth functioning of the single market for goods, and to reduce the administrative burden. When, after all, an accident occurs, the directive serves as a “safety net”.
The reality of 2018 is not the same as 1985. The EU and its rules in the field of product safety have evolved, as have the economy and technologies. Many products available today have features that were considered science fiction in the 1980s. The challenges we face today, and which will be even more relevant in the future, include — to name just a few — digitization, the ‘Internet of Things’, the artificial intelligence and cybersecurity.
As the Directive has never been evaluated since its entry into force and taking into account these recent technological developments, the Commission carried out its evaluation in order to assess its performance. The assessment took into account recent technological developments and specifically analyzed whether the directive:
remains effective in achieving its initial goals;
it’s efficient;
is consistent with the relevant EU rules;
remains relevant in response to recent technological developments; and
whether EU product liability legislation remains an added value for businesses and injured parties
The assessment revealed that, although products are much more complex today than they were in 1985, the Product Liability Directive remains an appropriate instrument.
However, it is necessary to clarify the legal understanding of certain concepts (such as product, producer, defect, damage and burden of proof) and to carefully consider certain products, such as pharmaceuticals, which may prove to be a challenge to the effectiveness of the Directive.
Furthermore, with regard to new digital technologies, a first look at how they affect the functioning of the Directive raised several questions. In light of these findings, the Commission will undertake a broad consultation with a view to reaching a common understanding with all stakeholders. The aim is to develop detailed guidance on how to apply the directive today. Furthermore, it will assess the extent to which emerging digital technologies can be adequately addressed in the current directive. The guidelines and assessment will help us prepare for the adoption of a product responsibility framework suited to the digital industrial revolution.
