Forty years after the first directive on liability for defective products, the new directive (EU Directive 2024/2853) adopted on October 23, 2024, fundamentally reforms the law on defective product liability, particularly regarding the burden of proof.
The scope of the reform still depends on its implementation, which shall take place by December 9, 2026, and on how judges will apply it but, in any case, the principles of evidence administration in disputes related to defective products could be profoundly changed.
Easing the burden of proof
The public consultation that preceded the adoption of the recent directive revealed that a large proportion of respondents considered the burden of proof to be an obstacle to the proper functioning of the system. Indeed, in terms of liability, including product liability, it is for the claimant, i.e., the person who has suffered a damage, to prove that such damage was caused by a defective product. However, this proof can be difficult to provide, especially when the product in question is complex (e.g., a drug or software). The new text is designed to address this concern and offer better security for individuals.
In this respect, an Article 9 entitled "Disclosure of evidence" and an Article 10 "Burden of proof" have been included; their objective is to ease the burden of proof for the victim of a defective product.
Article 9 allows to request from the manufacturer of the defective product to "disclose relevant evidence that is at [its] disposal". The request for disclosure is made to a judge who shall first verify the plausibility of the request and, in any event, limit disclosure to what is "necessary and proportionate."
Needless to say that such disclosure is likely to raise confidentiality issues. Indeed, the confidential nature of an information will not be sufficient to oppose the judge's disclosure order if the information in question is considered relevant. On this point, the new directive specifies that judges shall take into account the "legitimate interests of all parties concerned, including third parties". In particular, Article 9.5 provides that courts shall take "specific measures to preserve the confidentiality," and notably trade secrets in the course judicial proceedings. Thus, affected companies will have to rely on the regime resulting from Directive 2016/943 implemented by Articles L.151-1 to L.154-1 of the Commercial Code, to ensure that confidential information and other trade secrets are not disclosed to the public in the course of a judicial procedure.
So far, the new directive remains relatively close to current law.
The introduction of a disclosure mechanism
More innovative, Article 9.6 seems to envisage massive disclosure of documents similar to the discovery mechanism well known in the USA. Indeed, such provision states that the manufacturer required to disclose evidence may be obliged, in some cases, to ensure that such evidence is easily accessible and understandable. In other words, the manufacturer shall therefore not limit himself to simply communicate all relevant data but shall also prepare an accessible and understandable summary for the claimant alleging the defect. Up to now, this work has, in most cases, been carried out by an independent expert. This obligation will therefore be a novelty: the defendant to a liability claim will have to play an active role, sometimes against his interest, to facilitate the claimant's demonstration.
Similarly, the new directive innovates considerably with its Article 10.2 which states that "the defectiveness of the product shall be presumed where […] the defendant fails to disclose relevant evidence […]."
This presumption of defectiveness is a departure from current law.
It will inevitably increase pressure on manufacturers who may be tempted to proceed with massive disclosures to avoid the application of this presumption. It is not certain that such disclosures will always be in the interest of the claimant. Indeed, in some technical fields, there may be so much information that the claimant could be overwhelmed. To this criticism, the legislator would surely reply that this risk is neutralized by the obligation of the defendant to provide evidence in "an easily accessible and easily understandable manner" as mentioned above.
The presumption of defectiveness will also increase pressure on judges who will have to give detailed rulings to limit its application to what is reasonable. Indeed, they will have to distinguish between cases where the action shall be dismissed because there is no proof of the defect and cases where the judge believes that relevant evidence exists but has not been disclosed... A tricky exercise to come.
More generally, the scope of the whole reform, which in particular extends the product liability regime to "new technologies," should not be overlooked. This is particularly true when we consider that the previous Directive 85/374 began to influence French law even before its implementation. Lawyers and businesses would therefore be well advised to get acquainted with these new principles as soon as possible in order to anticipate difficulties.
