Entry into force of the new Directive 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC.
Following its adoption on 10 October 2024 by the Council, the text of the new Directive 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC (the “Directive”) was published yesterday and will enter into force on 9 December 2024.
The new Directive maintains the essence of the previous Directive and the agent’s liability continues to be strict, derived from the causal link between the defectiveness of the product and the damage caused, regardless of intentional or negligent behaviour.
However, the recently adopted Directive develops in a broader and more specific way some essential product liability concepts such as:
Injured person
It only provides cover for damage suffered by natural persons, whether they are direct or indirect victims (persons who have suffered damage as a result of damage suffered by a direct victim of a defective product).
Product
Digital manufacturing files and software are added.
Damage for which compensation is payable
In addition to death, personal injury and damage to property, they extend to medically recognised and certified damage to psychological health and non-material loss resulting therefrom, in so far as they can be compensated under national law.
Defectiveness
A product is defective if it “does not provide the safety that a person is entitled to expect or that is required under Union or national law”.
But new circumstances have been developed and added to assess the security of the product (e.g. machine learning), or interconnection with other products. Cybersecurity is also a new requirement to be considered as a “safe” product.
Producer
Other parties liable for damages caused by defective products, such as software developers, are added.
Manufacturer’s Control
The manufacturer is liable to the extent that the product is still in its control. The manufacturer’s control is defined as the action of the manufacturer of a product by which it performs or, with respect to actions of a third party, authorises or consents to: (i) the integration, inter-connection or supply of a component, including software updates or upgrades, or (ii) modification of the product, including substantial modifications.
Also the right to provide software updates or upgrades to the product, by the manufacturer itself or through a third party, is considered as within its control.
The Directive also introduces some new mechanisms in favour of the injured party, such as the implementation of a new system of disclosure of information at the defendant’s expense and the introduction of a series of iuris tantum presumptions (rebuttable) in favour of the injured party, which means that the burden of proof on the plaintiff is considerably alleviated.
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 9 December 2026 and shall apply to products placed on the market or put into service after that date.
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