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REPORT (COM(2022)0495 – C90322/2022 – 2022/0302(COD))

On the proposal for a directive of the European Parliament and of the Council on liability for defective products

A-9-2023-0291

Committee on the Internal Market and Consumer Protection Committee on Legal Affairs · Rapporteur: Pascal Arimont, VladMarius Botoş

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Written by a language model from the full text only; every figure comes from the text. The paragraph links open the paragraph a statement rests on — check the text itself before relying on it.

Parliament's amended version of the Commission proposal for a directive on liability for defective products replaces Directive 85/374/EEC with new no-fault liability rules. It extends the definition of product to software, digital manufacturing files, raw materials and electricity, and covers related digital services as components. It sets rules on damage, including destruction or irreversible corruption of data above EUR 1 000, and on defectiveness, assessed against the safety an average person is entitled to expect or required by law. It lets national courts order disclosure of evidence and eases the claimant's burden of proof through presumptions of defectiveness and causation in cases of technical or scientific complexity. It exempts certain software manufacturers, sets a 10-year limitation period extended to 30 years for latent personal injury, and requires the Commission to maintain a public database of judgments and review the directive.

Committee position. The committees adopt Parliament's position at first reading with amendments to the Commission proposal, extending liability to software and digital services, adding disclosure and presumption rules, and setting limitation periods and review requirements.

Key points

  1. The directive lays down common rules on the liability of economic operators for damage suffered by natural persons caused by defective products, and aims to ensure they are entitled to compensation.
  2. It does not apply to free and open-source software unless offered for a price or for personal data not used exclusively to improve security, compatibility or interoperability.
  3. 'Product' means all movables, including electricity, digital manufacturing files, raw materials and software, even if integrated into or inter-connected with another movable or an immovable.
  4. Damage covers death or personal injury, damage to or destruction of property, and destruction or irreversible corruption of data not used for professional purposes above EUR 1 000.
  5. A product is defective when it does not provide the safety an average person is entitled to expect or that is required under Union or national law.
  6. Member States must ensure national consumer protection authorities give information and tailored guidance to consumers, and that market surveillance authorities exchange information with consumer bodies.
  7. National courts may order the defendant, or the claimant, to disclose relevant evidence, subject to necessity and proportionality and protection of trade secrets.
  8. Defectiveness is presumed where the defendant fails to disclose evidence, where the product does not comply with mandatory safety requirements, or where damage was caused by an obvious malfunction.
  9. Where the claimant faces excessive difficulties due to technical or scientific complexity, defectiveness or causation is presumed if the claimant shows it is possible the product contributed to the damage and was defective.
  10. Software manufacturers that were microenterprises or small enterprises when placing software on the market are exempt from liability if another economic operator is liable for the damage.
  11. Rights are extinguished 10 years after the product, last update or substantial modification was placed on the market, or 30 years where personal injury is slow to emerge.
  12. The Commission shall maintain a publicly available database of relevant judgments and review the directive every 5 years, reporting on costs, benefits, third-country protection and insurance availability.

Who is affected

  • Consumers and injured persons, who gain rights to compensation for defective products and easier access to evidence.
  • Manufacturers, importers, authorised representatives, fulfilment service providers and distributors, who can be held liable.
  • Online platforms, which are liable as economic operators when they act as manufacturer, importer or distributor.
  • Software developers and micro or small enterprises, which may be exempt from liability in certain cases.
  • Member States, which must ensure guidance to consumers, information exchange and may set up compensation schemes.

Figures and deadlines

  • EUR 1 000, the threshold above which destruction or irreversible corruption of data is compensated.
  • 10 years, the limitation period from placing on the market, putting into service or substantial modification.
  • 30 years, the limitation period where symptoms of personal injury are slow to emerge.
  • 53 %, the share of rejected claims relating to proof of the defect and its link with the damage.
  • 60 %, the share of successful claims for defective products from 2000 to 2016.
  • 6 years after entry into force, and every 5 years thereafter, the Commission reviews the directive.

Legal basis: Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union.