On 10 October, the Council of the EU adopted a new directive on liability for defective products. This directive updates the EU's product liability rules to better align with the digital age, increasingly global supply chains, and the circular economy, with an overall aim to “benefit consumers … [and] also encourage the roll-out and uptake of new technologies and give legal clarity and a level playing field to producers”.
Its key points include:
Digital Economy: The definition of “product” now includes digital manufacturing files and software. Online platforms can be held liable for defective products sold on their platforms if they act like economic operators.
Circular Economy: Liability extends to companies or individuals who repair or upgrade products outside the original manufacturer’s control.
Evidence Disclosure: Injured persons can request access to relevant evidence from manufacturers to prove their claims more easily.
Non-EU Manufacturers: EU-based importers or representatives of foreign manufacturers can be held liable for damages caused by products made outside of the EU.
Burden of Proof: Courts may ease the burden of proof for consumers facing excessive difficulties in proving a product’s defectiveness or the causal link to the damage by allowing claimants to only prove the likelihood that the product was defective or that its defectiveness was a likely cause of the damage.
The directive will enter into force 20 days after its publication in the Official Journal of the European Union, following which member states will have two years to transpose it into national law.