The existing EU Product Liability Directive (85/374/EEC) imposes strict liability on manufacturers (and, in certain cases, other economic operators in the supply chain) for damage caused by a defective product. The burden of proof is on the claimant to show that the product was defective, they suffered damage and that there is a causal link between the defect and the damage. There is no requirement for the claimant to prove fault.

In 2022, the Commission proposed a new Directive. One key aspect of the proposal is the extension of the definition of “product” to include software (including updates), both standalone (e.g. smartphone app) and embedded. Other aspects of the Commission’s proposal, which similarly aim to address developments in technology, including protecting consumers from damage caused by AI, were previously reported by Wiggin. The EU Parliament and Council have now reached a provisional agreement on the Directive. The text is not yet available but some of the reported agreed changes to the Commission’s proposal are described below.

The proposal extends “damage” (which already includes death, personal injury or damage to or destruction of property) to the destruction or irreversible corruption of data not used for professional purposes (e.g. deletion of files from a hard drive). Parliament had proposed a threshold for the value of such data to qualify as material loss of €1,000 but this was rejected in talks with the Council.

The co-legislators have agreed some amendments to the rules on the burden of proof. For example, where the claimant faces excessive difficulties, in particular due to the technical or scientific complexity of the case, to prove the defectiveness of the product or the causal link between the defect and damage, a court may decide that the claimant need only prove the likelihood that the product was defective or that its defectiveness is a likely cause of the damage.

The Directive must now be approved by Member States’ representatives and, if approved, will have to be formally adopted by the Parliament and Council. Once it enters into force, the rules will apply to products placed on the market 24 months after that.

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