EFS Consulting

New draft for EU product liability directive

The Commission presented its long-awaited draft for a new product liability directive on Sept. 28, 2022. 

The industry may have to prepare for a drastic tightening of product liability legislation in Europe. One of the main new aspects in this draft, is the cybersecurity requirements of the product.
This means that, the directive will no longer apply only to movable objects and electricity, but also to digital production files and software. Under the term software, also fall systems of artificial intelligence (AI systems). 

That means that in the future, the manufacturer will also be liable if he can continue to control the product after it has been placed on the market (e.g. through appropriate security software updates). 

Another amendment is that, if a product liability case could arise, the company may in future be required to hand over evidence in its possession (e.g. design documents, documented findings from product monitoring) that the plaintiff needs to substantiate its claims. Moreover, the previously applicable deductibles (EUR 500 for property damage) and maximum liability limits (EUR 85 million for personal injury) will no longer apply without replacement.  

Additionally, the existing simplification of the burden of proof for injured parties will also be significantly extended. The required causal connection between product defect on the one hand and damage on the other will now be assumed in favor of the injured party if the damage was caused by “obvious malfunction of the product during normal use”. 

All relevant terms of the new directive will be adapted to the current European product safety law and thus to the so-called New Legislative Framework (NLF).  

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