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 5-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.”
The report notes that the challenges posed by the technological revolution affecting consumer products since 1985, underpinned by exponential developments in hardware and software engineering, and the rapid take-up of digital marketing, the Internet of Things, artificial intelligence, robotics, cybersecurity, all these phenomena 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.
The two formations worked in a coordinated way and shared information and conclusions to deliver a coherent work.
Where do we stand
The European Commission is expected to publish a “comprehensive guidance” on the application of the Directive any time now (mid-2019), accompanied by a report on the broader implications for AI, Internet of Things and robotics.