Volume 15, Issue 2

This paper shall give an overview of the forthcoming changes to EU product liability law as foreseen by the planned new directive. While more details will be given by the further contributions to this issue, the key elements of the proposal will be outlined, with a particular focus on the expansion of the regime to software and other digital products. The contributions to this special issue of the Journal of European Tort Law (JETL) present and analyse the upcoming changes to product liability law in the EU. My task is to give a short introduction to where we stand, why we got here, and what the authors of the following articles will focus on in more detail.

On 12 March 2024, the European Parliament adopted in first reading the Product Liability Directive, adding substantial amendments to the European Commission’s proposal of 2022. The aim of the reform is to adapt the famous 1985 Product Liability Directive to the digital age and make it easier for consumers to enforce their rights in court. It notably introduces a duty of disclosure and various alleviations of the burden of proof. The present paper describes the proposed rules on disclosure of evidence and presumptions, charts the changes between the Commission’s proposal in 2022 and the Parliament’s adoption in 2024, and attempts to assess whether the new product liability regime will meet the challenges of its time and be a game changer in helping consumers enforce their rights.

On 12 March 2024, the European Parliament adopted the text for revising the current Product Liability Directive (revised PLD), which was implemented in 1985. The revised PLD adapted the rules for the damage caused by defective products for the challenges from digitalisation, the circular economy and international supply chains. In particular, the new rules aim to ensure that new technologies, such as AI, could be well reflected, so that residents in the European Union could be effectively protected. Conventionally, a law and economics analysis has played a crucial role in shaping product liability. The objective of this paper is to discuss the major changes in the revised PLD via the lens of insights of law and economics. In specific, we focus on the influence of these changes on multiple key elements, including deterrence effect, risk-shifting and local preferences.

The new Directive on Product Liability is hard to overestimate, as it is nothing less than a complete overhaul of the 1985 Product Liability Directive (PLD), which still lies at the heart of EU tort law. One focus of the reform act is the challenge posed by digital transformation. To accommodate the new category of digital devices, the concept of product is widened so as to include software and related services, and the strict ex ante perspective for the finding of product defect is attenuated to account for continued control of the manufacturer post-marketing. Further to broadening the scope of application, the protective perimeter of the Directive is expanded, namely to include data used for private purposes. The second focus of the reform act, of at least equal importance, are changes to the liability regime for products of any kind, regardless of their digital nature or elements. Thus, e-commerce intermediaries such as platforms are ushered into the scope of the Directive as new defendants, alongside manufacturers, importers, and distributors. With a view to quantum, the € 500 retention for property damage had to go, together with the authority of the Member States to impose a cap on liability under the Directive. Unfortunately, there was no time to revisit the foundations of product liability. Thus, the new Directive holds on to the consumer protection gospel of product liability and excludes commercial property from the scope of protection, even though there is no good reason to discriminate against business interests. As before, national law must and will step in to fill in the gaps in Union law, perpetuating the double-track liability systems that the 1985 Directive helped to create.