The proposal for a revised Product Liability Directive: The emperor's new clothes?
| Published date | 01 October 2023 |
| DOI | http://doi.org/10.1177/1023263X231216941 |
| Author | Shu Li,Béatrice Schütte |
| Date | 01 October 2023 |
The proposal for a revised
The emperor’s new clothes?
Shu Li* and Béatrice Schütte**,***
Abstract
On September 28, 2022, the European Commission presented the long-awaited proposal for a
revised Product Liability Directive (PLD). By adapting rules and concepts to digitalization and cir-
cular economy, the revised PLD aims to ensure that the damage that defective products
caused can be remedied adequately. This paper provides a comprehensive analysis of the substan-
tive and procedural harmonized rules that are reshaped in the revised PLD. The discussion shows
that although the revised version makes progress, ambiguities remain about essential concepts
such as ‘product’,‘damage’, and ‘defectiveness’. Those ambiguities could generate significant
legal uncertainties. In addition, it is imperative to consider whether the harmonization that results
from the revised PLD strikes a balance between centralized policy goals and local preferences.
Since it has been reiterated that the revised PLD will be limited to safety-related harm rather
than to harm to other fundamental rights (e.g., data protection and equal treatment), it is also
crucial to inquire whether harms of the latter kind can be remedied effectively by other relevant
legal regimes.
Keywords
Product liability, digitalization, damage, defectiveness, artificial intelligence, fundamental rights
*
Erasmus School of Law, Erasmus Universiteit Rotterdam, Rotterdam, Netherlands
**
Faculty of Law, University of Helsinki, Helsinki, Finland
***
Faculty of Law, University of Lapland, Rovaniemi, Finland
Corresponding author:
Shu Li, Erasmus School of Law, Erasmus Universiteit Rotterdam, Burgemeester Oudlaan 50, Rotterdam, Netherlands.
Email: li@law.eur.nl
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(5) 573–596
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X231216941
maastrichtjournal.sagepub.com
1. Introduction
1
was adopted in 1985. Its main purpose is to ensure that pro-
ducers are liable for the damage that their defective products caused to individuals.
2
The idea of
1985 PLD is to provide a maximally harmonized framework through which Member States can
address liability and remedy the damage that products cause. Therefore, no Member State can main-
tain or introduce more or less stringent rules on damage that is caused by defective products unless
authorized explicitly by the text of 1985 PLD.
3
For claims that are outside the scope of the
Directive, such as claims for damage that is not recoverable under the product-liability regime or
claims against actors other than producers, injured persons must rely on other horizontally applic-
able regulations and national laws to recover their losses.
Stakeholders have expressed doubts about the suitability of the 1985 PLD for addressing the
harm that defective products cause at present, particularly in the light of the significant role that
digital technologies now play in disrupting production processes.
4
The EU authorities also recog-
nized the new challenges that digitalization poses. In 2018, the 1985 PLD was evaluated in order to
identify discrepancies between it and the issues that digital technology has created.
5
The conclusion
was that while the liability rules that are laid down in the 1985 PLD are adequate on the whole,
essential concepts such as ‘product’are no longer fit for the transformed patterns of digitalization-
driven production and the circular economy.
6
Significant legal fragmentation has occurred across
the EU Member States. This fragmentation is liable not only to generate significant uncertainties
about the potential liability of stakeholders but also to undermine the effective protection of
consumers.
7
Against this background, on September 28, 2022, the Commission presented two proposals for
adapting liability rules to the digitalization-led transformation, the circular economy and the global
value chain. The first proposal is the AI Liability Directive (AILD),
8
which attempts to lay down
1. Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provi-
sions of the Member States concerning liability for defective products. OJ L 210, 7.8.1985, 29–33.
3. G. Veldt, ‘The New Product Liability Proposal –Fit for the Digital Age or in Need of Shaping Up?’, 12(1) Journal of
European Consumer and Market Law (2023), p. 25. For the explanation by the Court of Justice, see also Case C-52/
00, Commission v. France, EU:C:2002:252, para. 17–20. For the general discussion on maximum harmonization of
EU consumer law, see V. Mak, ‘Review of the Consumer Acquis: Towards Maximum Harmonization?’17(1)
European Review of Private Law (2009), p.55.
4. See for example, K. Nemeth and J. Carvalho, ‘Time for a Change: Product Liability in the Digital Era’,9Journal of
European Consumer and Market Law (2019), p. 160; T. Cabral, ‘Liability and Artificial Intelligence in the EU:
Assessing the Adequacy of the Current Product Liability Directive’, 27(5) Maastricht Journal of European and
Comparative Law (2020), p. 615: C. Cauffman, ‘Robo-liability: The European Union in Search of the Best Way to
Deal with Liability for Damage Caused by Artificial Intelligence’, 25(5) Maastricht Journal of European and
Comparative Law (2018), p. 527–532.
5. Commission, ‘Evaluation of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations
and administrative provisions of the Member States concerning liability for defective products’, SWD(2018) 157 final
(‘Evaluation’).
6. For example, it reveals that in certain countries (e.g. Italy, Netherlands and Greece), products purchased in bundle with
services are not considered products. In contrast, in countries like Finland and Luxembourg they are considered products.
See Commission, Evaluation (2018), p. 52.
7. Commission, Evaluation (2018), p. 26.
8. Commission, ‘Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on adapting
non-contractual civil liability rules to artificial intelligence (AI Liability Directive)’, COM(2022) 496 final (‘AILD’).
574 Maastricht Journal of European and Comparative Law 30(5)
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