Last Nov. 18, 2024, Directive No. 2024/2853 on liability for defective products (“PLD” - Product Liability Directive) was published in the Official Journal of the European Union, which EU member states must transpose by Dec. 09, 2026, and will apply to products placed on the market or put into service after that date.
This directive responds to developments related to new technologies (primarily artificial intelligence), new circular economy business models, and issues related to the globalization of supply chains.
Some of the main changes introduced by the PLD are:
- the broadening of the notion of "product," which will now include any movables, even if integrated into or interconnected with another movable or immovable, as well as digital manufacturing files and software (Art. 4 no. 1);
- The expansion of compensable damages with the inclusion of psychological damages if medically recognized (Art. 6, para. 1 lett. a) and destruction or corruption of data;
- the evaluation of product recalls or other relevant actions by the Competent Authority or economic operator-including the Product Manufacturer (Art. 7(g)) for the purpose of judging the defectiveness of the product although it is ruled out that they can have the value of a legal presumption (Recital 34);
- the extension of the group of parties liable for damage caused by defective products to any party participating in the production process: manufacturer of the product (art. 8, co. 1 lett. a), manufacturer of a defective component integrated into a product (art. 8, co. 1 lett. b) as well as importer of the defective product or component and authorized representative or provider of logistics services in the case of manufacturers established outside the European Union (art. 8, co. 1 lett. c) and last but not least - provider of online platforms (art. 8, co. 4).
It is also provided (Art. 8, para. 2) that the person who makes substantial changes to the product is liable if such changes are made outside the control of the original manufacturer (think of reconditioned products).
The PLD also has some interesting procedural provisions, including:
- the obligation of the economic operator sued for damages to disclose the relevant evidence at its disposal, provided that the claim is based on facts and evidence suitable to support its plausibility (Art. 9, para. 1);
- in general, a reduction of the burden of proof on the injured party. The Directive, in fact, provides for a series of presumptions about the existence of the defect in the case, for example, of i) failure of the economic operator to disclose evidence (Art. 10, para. 2, lett. a), (ii) finding undue difficulty on the part of the injured party, due to technical or scientific complexity, in proving the defect and/or the causal link between defect and damages (Art. 10, co. 4 lett. a), (iii) proof by the injured party of the mere probability that the product is defective or the existence of the causal link between defect and damages (Art. 10, co. 4 lett. a);
- the extension of the expiry period to 25 years in cases where the injured party proves that he or she was unable to initiate compensation proceedings within the ordinary expiry period of 10 years due to the latency period of the personal injuries (Art. 17, para. 2).
