The Directive (EU) 2024/2853 has been adopted, modernizing the rules on liability for defective products and replacing Directive 85/374/EEC.
The key points of Directive (EU) 2024/2853 are as follows:
1. Scope of Application
The Directive covers all products, including software and digital manufacturing files (such as Artificial Intelligence models), that are placed on the market after December 9, 2026.
It excludes:
- Free and open-source software developed outside commercial activities.
- Nuclear accidents where liability is governed by international conventions.
2. Key Provisions:
Right to Compensation: Affected individuals can claim compensation for:
- Personal injury or death, including medically recognized mental health injuries.
- Material damage, including data destruction not used for professional purposes.
Liability: Liability applies to:
- Manufacturers (including those who make substantial modifications to a product outside the manufacturer’s control). If manufacturers are not established in the EU, liability extends to:
- The product or component importer.
- The authorized representative.
- In their absence within the EU, the fulfillment service provider.
Liability also covers damages caused by defective components, including those integrated or connected (e.g., patches).
Time Limits:
- A 3-year limitation for submitting claims.
- An extension up to 25 years for latent personal injuries caused by the defect but manifested later.
3. Burden of Proof
Basic Obligations for the Claimant: The claimant must prove:
- The existence of damage (e.g., personal injury or property destruction).
- The defectiveness of the product.
- The causal link between the defective product and the damage.
Facilitation for the Claimant: The Directive acknowledges that claimants often face difficulties accessing technical information held by manufacturers. To address this:
- Courts can require the defendant (e.g., the manufacturer) to disclose evidence related to the product’s production or safety.
- Disclosure must be proportional and protect confidential information (e.g., trade secrets), in accordance with national and EU law (e.g., Directive (EU) 2016/943).
Non-compliance by the defendant with such obligations can lead to a presumption of defectiveness in favor of the claimant.
Consumer Protection in Complex Cases: In cases characterized by technical or scientific complexity, courts may apply presumptions to facilitate the claimant:
- If it is proven that one product in the same production series is defective, defectiveness may be presumed for the remaining products.
- In cases involving cybersecurity or Artificial Intelligence systems, where specialized technical knowledge is required, courts may consider the defendant’s inability to refute technical data.
Balance Between Claimant and Defendant: While the Directive facilitates claims for the claimant, the defendant can also request evidence from the claimant if necessary to refute the claim.
4. Product Safety
A product is deemed defective if:
- It does not provide the level of safety a reasonable user would expect.
- It is affected by cybersecurity vulnerabilities or insufficient software updates.
Software and digital services are considered “products” when they impact the safety of a physical product. Liability includes damages caused by software updates.
5. Consumer Protection
Member States may establish national compensation schemes for cases where responsible parties are insolvent.
6. Exceptions and Innovation Protection
- Free and open-source software developed outside commercial contexts is excluded.
- Product improvements or new versions do not imply defectiveness of earlier versions.
7. Review Mechanisms
The European Commission will:
- Evaluate the Directive starting December 9, 2030, and every five years thereafter.
- Create a public database of court decisions related to product liability.
The Law Office “Stergios Konstantinou & Associates – SGK Legal” provides specialized services in product liability, integrating modern legal requirements for technological products, software, and Artificial Intelligence. Emphasizing consumer protection and business compliance with EU and national laws, we offer:
- Legal representation in compensation claims.
- Consulting on product compliance with safety requirements.
- Support in issues related to cybersecurity and software liability.
- Guidance on adopting best practices for new technologies and business models.
Our goal is to ensure your legal security while fostering innovation and protecting your rights.