One of the main objectives of the European Commission through this proposal is to allow each and every EU citizen to have compensatory collective redress tools at national level.
The Product Liability Directive 85/374/EEC applies to any product marketed in the European Economic Area (EU, Iceland, Liechtenstein and Norway) and establishes an EU-wide regime under which the producer is liable if a product is defective and causes injury or damage to consumers.
In its latest yearly report (May 2018) on the application of the Directive, the European Commission concluded “the Product Liability Directive continues to be an adequate tool.” However, it also acknowledged that the Directive is not perfect and that given the ubiquity of digital products and services now available to consumers or forming part of the supply chain, “its effectiveness is hampered by concepts, such as ‘product’, ‘producer’, ‘defect’ or ‘damage’, that could be more effective in practice.”
Technological revolution affecting consumer products, exponential developments in hardware and software engineering, the rapid take-up of digital marketing, the Internet of Things, artificial intelligence, robotics and cybersecurity inter alia, require the concepts on which the Directive was drafted to be re-evaluated.
The European Commission has set up an Expert Group to investigate these issues, which is working in two sub-groups:
- The 'product liability formation' to provide expertise and assistance to the Commission in drawing up guidance on the Directive;
- The 'new technologies formation' to assess the implications of emerging digital technologies for the wider liability frameworks at EU and national level.
Where do we stand
The European Commission conducted a first consultation in July 2021 and gathered feedback regarding its roadmap on the revision of the Product Liability Directive. It opened a second targeted public consultation in October 2021. EJF contributed to both those consultations. The Commission plans to adopt a proposal of the revision on the 28th of September, 2022.
In parallel, the European Commission unveiled in April 2021 its Artificial Intelligence Act (AI Act) which has undergone the scrutiny of both co-legislators, the Council and the European Parliament. In February and March 2022, the European Parliament’s JURI, CULT and ITRE Committees presented their draft reports on the file.
It is for now unclear whether the Product Liability Directive will be revised separately, or if some of it will be absorbed by the upcoming AI Act.