Changes from plenary report to adopted text

RemovedEXPLANATORY STATEMENT

RemovedIntroduction

RemovedThe Co-Rapporteurs welcome the Commission’s proposal for a Directive on liability for defective products (hereafter: PLD). Ensuring that persons, who suffer physical injury or damage to property due to defective products, have possibilities to claim compensation, is an important element of EU liability legislation.

RemovedSince the adoption of the Product Liability Directive in 1985, there have been considerable changes with regard to the kinds of products available on the market in light of new market trends and global value chains. The green and digital transitions are also radically transforming the world of products. Today many products are digital products and they include embedded software. Many products are also refurbished products. As regards the distribution of products nowadays, more and more sales are concluded online via market places and other online platforms. These novelties have created challenges with respect to the liability regime that the PLD from 1985 has put in place.

RemovedAn updated liability framework that addresses these new challenges and that removes divergences between the legal systems of Member States, which may distort competition and affect the movement of goods within the internal market, is therefore necessary to ensure a high level of consumer protection in the Union.

RemovedFair allocation of risk

RemovedThe Co-Rapporteurs believe that the PLD needs to strike the right balance between the interests of injured persons and those of economic operators liable for defective products. Ensuring a fair allocation of risk is essential in their view for the revision of the rules of the PLD.

RemovedBy aligning the rules in the Union to get a fair compensation when defective products cause harm, the Co-Rapporteurs want to strengthen the level of consumer protection across the EU. At the same time, the new legal framework should enhance legal certainty for economic operators in the internal market, without overburdening them, thereby preventing a decline of innovative products in Europe, higher consumer prices and less product variety.

RemovedThe Co-Rapporteurs therefore commit to striking the right balance and ensuring a proportionate product liability framework for economic operators and consumers. In their vision, strengthening consumer rights through harmonisation and ensuring an innovation friendly liability regime, which is fair to economic operators go together.

RemovedDamages recognised under the PLD framework

RemovedThe Co-Rapporteurs acknowledge that the digitalisation requires adaptations of the liability framework. They support the recognition of damages, which foresee compensation for material losses resulting from death or personal injury, such as funeral or medical expenses or lost income, and from damage to property. They also recognise that Member States may consider that personal injury includes medically recognised damage to psychological health amounting to an effect on the victim’s psychological health that affects the general state of health as confirmed by a court-ordered medical expert.

RemovedThe Co-Rapporteurs consider that loss or corruption of data are appropriately dealt with under Regulation (EU) 2016/679 of the European Parliament and of the Council, Directive 2002/58/EC of the European Parliament and of the Council, Directive (EU) 2016/680 of the European Parliament and of the Council, and Regulation (EU) 2018/1725 of the European Parliament and of the Council. They do therefore not see a need to include this type of harm in the framework of the PLD.

RemovedDefectiveness of a product

RemovedThe Co-Rapporteurs consider that a product should be considered defective when it does not provide the safety, which an average person is entitled to expect, taking into consideration in particular the standard of safety applicable to the product in question. Moreover, in assessing the defectiveness of a product, all circumstances should be taken into account, including the effect that other products might have on the defective product, where, at the time of placing on the market or putting into service, it can reasonably be expected, that it will be used with other products.

RemovedDisclosure of evidence and the alleviation of the burden of proof

RemovedAcknowledging that the burden of proof can be more fairly shared between injured persons and manufacturers, especially in technically or scientific complex cases, the Co-Rapporteurs oppose however a general reversal of the burden of proof. In order to facilitate the claimant’s burden of proof, the Co-Rapporteurs estimate that a court-ordered disclosure of evidence, without which the claimant is unable to prove the claim for compensation, should be made possible when it is necessary and proportionate. The interests of all parties should be taken into account for this assessment, and confidential information and trade secrets within the meaning of Directive (EU) 2016/943 of the European Parliament and of the Council, deserve special protection by ensuring their confidentiality. Moreover, the Co-Rapporteurs pursue to alleviate the claimant’s burden of proving the defectiveness on a case-by-case basis, where it can plausibly be presumed that it was highly likely that the product was defective and that it was highly likely that this defectiveness caused the damage.