[ParlTrack]

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 12

(12) Products in the digital age can be tangible or intangible. Software, such as operating systems, firmware, computer programs, applications or AI systems, is increasingly common on the market and plays an increasingly important role for product safety. Software is capable of being placed on the market as a standalone product and may subsequently be integrated into other products as a component or may be provided as one or several services or as software as a service, and is capable of causing damage through its execution. In the interest of legal certainty it should therefore be clarified that software is a product for the purposes of applying no- fault liability, irrespective of the mode of its supply or usage, and therefore irrespective of whether the software is stored on a device or accessed through cloud technologies. The source code of software, however, is not to be considered as a product for the purposes of this Directive as this is pure information. The developer or producer of software, including AI system providers within the meaning of [Regulation (EU) …/… (AI Act)], should be treated as a manufacturer.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 13 a (new)

(13a) In the interest of legal certainty, a manufacturer may decide to integrate free and open-source software as a component of a product or authorise its integration, inter-connection or supply by a third party, which should then be considered as modifications under the manufacturer’s control. In such cases, if the product is placed on the market or, where relevant, put into service in the course of a commercial activity, this Directive shall apply. Therefore, the manufacturer of the product may be held liable for damages arising from a defect in the free and open source software. However, the manufacturer of the free and open-source software may not be held liable for such damages unless the software is supplied to the manufacturer of the product in exchange for a price or personal data is used other than exclusively for improving the security, compatibility or interoperability of the software.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 18

(18) While Member States should provide full and proper compensation for all material and non-material losses resulting from death, or personal injury, or damage to or destruction of property ~~and~~, data loss ~~or corruption~~, corruption theft or unauthorised copying and pure economic loss, rules on calculating compensation should be laid down by Member States. ~~Furthermore, this Directive should not affect national rules relating to non-material damage.~~

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 18 a (new)

(18a) In the interest of legal certainty, claimants should be able to request compensation for non-material damage even if the damage that triggered a claim for compensation under this Directive is of material nature. This is the case as material damages resulting from, for example, personal injury might result on both material and non-material losses, such as loss of income due to medical treatment or pain and suffering.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 18 b (new)

(18b) Claimants should also be able to launch claims based on non-material damages. The special characteristics of digital products and services, its complexity, opacity, vulnerability to cyberattacks, the ability of being modified through updates as well as the capacity for self-learning make digital products more susceptible of creating non-material damages. For instance, digital products can cause violations to privacy rights. A defect by a smart device may in itself present a non-material damage or may lead to reputational damage if personal data is accessible for third parties. Similarly, biased data that feeds digital technologies designed to take decisions such as on recruitment may lead to name or reputational damage. While the likeliness that analogue products cause immaterial damages is lower than the likeliness that digital products cause non- material harm, most Member States’ national legal orders do foresee compensation against non-material damages. Hence, in view of the proliferation of emerging digital technologies, it would be necessary to clarify at Union level that products, including digital products, can create non-material harm and that the damage needs to be compensated accordingly. Claimants should, therefore, be able to trigger a claim for compensation under this Directive based on non-material damages. Rules on calculating compensation for such damages should be laid down by Member States.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 20

(20) This Directive should apply to products placed on the market or, where relevant, put into service in the course of a commercial activity, whether in return for payment or, free of charge, or in exchange of personal data, for example products supplied in the context of a sponsoring campaign or products manufactured for the provision of a service financed by public funds, since this mode of supply still has an economic or business character.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 22

(22) In order to protect the health and property of consumers, the defectiveness of a product should be determined by reference not to its fitness for use but to the lack of the safety that the public at large is entitled to expect as well as to its compliance with standards of safety, consumer protection and data protection. The assessment of defectiveness should involve an objective analysis and not refer to the safety that any particular person is entitled to expect. The safety that the public at large is entitled to expect should be assessed by taking into account, inter alia, the intended purpose, the objective characteristics and the properties of the product in question as well as the specific requirements of the group of users for whom the product is intended. Some products, such as life- sustaining medical devices, entail an especially high risk of damage to people and therefore give rise to particularly high safety expectations. In order to take such expectations into account, it should be possible for a court to find a product defective without establishing its actual defectiveness, where it belongs to the same production series as a product already proven to be defective.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 27

(27) In order to ensure that injured persons have an enforceable claim for compensation where a manufacturer is established outside the Union or cannot be identified, it should be possible to hold jointly and severally liable the importer of the product ~~and~~, the authorised representative of the manufacturer ~~liable~~, the fulfilment service provider and the distributor of the product. Practical experience of market surveillance has shown that supply chains sometimes involve economic operators whose novel form means that they do not fit easily into the traditional supply chains under the existing legal framework. Such is the case, in particular, with fulfilment service providers, which perform many of the same functions as importers but which might not always correspond to the traditional definition of importer in Union law. In light of the role of fulfilment service providers as economic operators in the product safety and market surveillance framework, in particular in Regulation (EU) 2019/1020 of the European Parliament and of the Council46, it should be possible to hold them liable, but given the subsidiary nature of that role, they should be liable only where no importer or authorised representative is based in the Union. In the interests of channelling liability in an effective manner towards manufacturers, importers, authorised representatives and fulfilment service providers, it should be possible to hold distributors liable only where they fail to promptly identify a relevant economic operator based in the Union. _________________ 46 Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 (OJ L 169, 25.6.2019, p. 1).

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 28

(28) Online selling has grown consistently and steadily, creating new business models and new actors in the market such as online platforms. [Regulation […/…] on a Single Market for Digital Services (Digital Services Act)] and [Regulation […/…] on General Product Safety] regulate, inter alia, the responsibility and accountability of online platforms with regard to illegal content, including products. When online platformsOnline platforms may, for example, perform the role of manufacturer, importer or distributor in respect of a defective product~~, t~~. They should be liable on the same terms as such economic operators. When online platforms play a mere intermediary role in the sale of products between traders and consumers, they are covered by a conditional liability exemption under the Digital Services Act. However, the Digital Services Act establishes that online platforms that allow consumers to conclude distance contracts with traders are not exempt from liability under consumer protection law where they present the product or otherwise enable the specific transaction in question in a way that would lead an average consumer to believe that the product is provided either by the online platform itself or by a trader acting under its authority or control. In keeping with this principle, when online platforms do so present the product or otherwise enablthen be deemed an economic operator and be the ~~specific transaction, it should be possible to hold them~~ld liable~~, i~~ on the same way as distributors under this Directive. That means that they would be liable only when they do so present the product or otherwise enable the specific transaction, and only where the online platform fails to promptly identify a relevant economic operator based in the Unionterms as such economic operators.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 30

(30) In light of the imposition on economic operators of liability irrespective of fault, and with a view to achieving a fair apportionment of risk, the injured person claiming compensation for damage caused by a defective product should bear the burden of proving the damage, the defectiveness of a product and the causal link between the two. Injured persons, are~~, however,~~ often at a significant disadvantage compared to manufacturers in terms of access to, and understanding of, information on how a product was produced and how it operates. This asymmetry of information can undermine the fair apportionment of risk, in particular in cases involving technical or scientific complexity.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 31

(31) It is therefore necessary to facilitate claimants’ access to evidence to be used in legal proceedings, while ensuring that such access is limited to that which is necessary and proportionate, and that confidential information and trade secrets are protected. Such evidence should also include documents that have to be created ex novo by the defendant by compiling or classifying the available evidence. Taking in consideration the complexity of certain types of data, especially those from digital products, the evidence to be disclosed should be delivered in the most accessible manner possible, both in terms of the form of its delivery and its content.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 32 a (new)

(32a) The Council Directive 85/374/EEC established that the injured person claiming compensation for damage caused by a defective product should bear the burden of proving the damage, the defectiveness of a product and the causal link between the two. The 2018 Commission Report on the application of the Council Directive 85/374/EEC highlighted that “the most frequent reasons to reject claims relate to the proof of the defect and its link with the damage, which together account for 53% of the cases of rejection”. It is therefore important to reverse the burden of proof. In order to assure that consumers are able to enforce their rights and are not denied access to justice, claimants should only be required to prove the damage suffered. The defectiveness of the product and the causal link between the defectiveness and the damage shall be presumed unless rebutted by the defendant.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 33

(33) It is also necessary to alleviate the claimant’s burden of proof provided that certain conditions are fulfilled. Rebuttable presumptions of fact are a common mechanism for alleviating a claimant’s evidential difficulties, and allow a court to base the existence of defectiveness or causal link on the presence of another fact that has been proven, while preserving the rights of the defendant. In order to provide an incentive to comply with the obligation to disclose information, national courts should presume the defectiveness of a product where a defendant fails to comply with such an obligation. Many legislative and mandatory safety requirements have been adopted in order to protect consumers and the public from the risk of harm. In order to reinforce the close relationship between product safety rules and liability rules, non-compliance with such requirements should also result in a presumption of defectiveness. This includes cases in which a product is not equipped with the means to log information about the operation of the product as required under Union or national law. The same should apply in the case of obvious malfunction, such as a glass bottle that explodes in the course of normal use, since it is unnecessarily burdensome to require a claimant to prove defectiveness when the circumstances are such that its existence is undisputed.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 34

(34) National courts should also presume the defectiveness of a product or the causal link between the damage and the defectiveness, or both, where, notwithstanding the defendant’s disclosure of information, it would be excessively difficult for the claimant, in light of the technical or scientific complexity of the case, to prove its defectiveness or the causal link, or both. In such cases, requiring proof would undermine the effectiveness of the right to compensation. Therefore, given that manufacturers have expert knowledge and are better informed than the injured person, it should be for them to rebut the presumption. Technical or scientific complexity should be determined by national courts on a case-by-case basis, taking into account various factors. Those factors should include the complex nature of the product, such as an innovative medical device; the complex nature of the technology used, such as machine learning; the complex nature of the information and data to be analysed by the claimant; and the complex nature of the causal link, such as a link between a pharmaceutical or food product and the onset of a health condition, or a link that, in order to be proven, would require the claimant to explain the inner workings of an AI system. The assessment of excessive difficulties should also be made by national courts on a case-by-case basis. While a claimant should provide arguments to demonstrate excessive difficulties, proof of such difficulties should not be required. For example, in a claim concerning an AI system, the claimant should, for the court to decide that excessive difficulties exist, neither be required to explain the AI system’s specific characteristics nor how these characteristics make it harder to establish the causal link. The defendant should have the possibility to contest the existence of excessive difficulties.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 35

(35) In order to maintain a fair apportionment of risk, and to avoid a reversal of the burden of proof, a claimant should nevertheless, in order to benefit from the presumption, be required to demonstrate, on the basis of sufficiently relevant evidence, that it is likely that, where the claimant’s difficulties relate to proving defectiveness, the product was defective, or that, where the claimant’s difficulties relate to proving the causal link, its defectiveness is a likely cause of the damage.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 37

(37) The moment of placing on the market or putting into service is normally the moment at which a product leaves the control of the manufacturer, while for distributors it is the moment when they make the product available on the market. Therefore manufacturers should be exempted from liability where they prove that ~~it is probable that~~ the defectiveness that caused the damage did not exist when they placed the product on the market or put it into service or that it came into being after that moment. However, since digital technologies allow manufacturers to exercise control beyond the moment of placing the product on the market or putting into service, manufacturers should remain liable for defectiveness that comes into being after that moment as a result of software or ~~related service~~digital elements within their control, be it in the form of upgrades or updates or machine-learning algorithms. Such software or ~~related service~~digital elements should be considered within the manufacturer’s control where they are supplied by that manufacturer or where that manufacturer authorises them or otherwise influences their supply by a third party.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 39

(39) In the interests of a fair apportionment of risks, manufacturers should also be exempted from liability if they prove that the state of scientific and technical knowledge, determined with reference to the most advanced level of objective knowledge accessible and not to the actual knowledge of the manufacturer in question, while the product was within their control was such that the existence of defectiveness could not be discovered.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Recital 43

(43) Given that products age over time, and that higher safety standards are developed as the state of science and technology progresses, it would not be reasonable to make manufacturers liable for an unlimited period of time for the defectiveness of their products. Therefore, the liability should be subject to a reasonable length of time, that is 130 years following placing on the market, without prejudice to claims pending in legal proceedings. In order to avoid unreasonably denying the possibility of compensation, the limitation period should be 15 years in cases where the symptoms of a personal injury are, according to medical evidence, slow to emerge.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 1 – paragraph 1

This Directive lays down common rules on the liability of economic operators for damage suffered by natural persons caused by defective products. It complements Union and Member State law on extra- contractual liability, providing for compensation and a high level of protection for the victims of defective products.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 4 – paragraph 1 – point 2 a (new)

(2a) ‘software’ means software that is placed on the market as a standalone product, as a component of another product or provided as a service;

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 4 – paragraph 1 – point 5

(5) ‘manufacturer’s control’ means that (5) ‘manufacturer’s control’ means that the manufacturer of a product authorises a) the manufacturer of a product authorises a) the integration, inter-connection or supply the integration, inter-connection or supply by a third party of a component including by a third party of a component including software updates or upgrades, or b) the software updates or upgrades, or b) the modification of the product; modification of the product, including where the product is fed with new data or through the product’s ability to continue to learn after deployment;

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 4 – paragraph 1 – point 6

(6) ‘damage’ means material losses resulting from: (a) death or personal injury, including medically recognised harm to psychological health; (b) harm to, or destruction of, any property, except: (i) the defective product itself; (ii) a product damaged by a defective component of that product; (iii) property used exclusively for professional purposes; (c) loss or corruption of data that is not used exclusively for professional purposes;deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

(6a) ‘damage’ includes: (a) material damage resulting from: (i) death or personal injury, including medically recognised harm to psychological health, (ii) harm to, or destruction of, any property, except: - the defective product itself; - a product damaged by a defective component of that product; - property used exclusively for professional purposes; (iii) loss, corruption, theft or unauthorised copying of data that is not used exclusively for professional purposes; (iv) pure economic loss (b) non-material damages

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 5 – paragraph 2 – introductory part

2. Member States shall ensure that ~~claims for compensation~~the person claiming compensation for damages caused by a defective product (‘the claimant’) pursuant to paragraph 1 may also be ~~brought by~~:

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 6 – paragraph 1 – introductory part

1. A product shall be considered 1. defective when it is not in compliance with standards of safety, consumer protection and data protection or does not provide the safety or functioning which the public at large is entitled to expect, taking all circumstances into account, including the following:

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 6 – paragraph 1 – point d

(d) the effect on the product of other products that can reasonably be expected to be used together with the product including by interconnection;

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 6 – paragraph 1 – point h

(h) the specific expectations of the end- users for whom the product is intended., including particular vulnerable end-users such as children, older people and persons with disabilities;

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 6 – paragraph 1 – point h a (new)

(ha) claims that products from the same product series have been shown to be defective by consumers or consumers’ organisations.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 7 – paragraph 2

2. Member States shall ensure that, where the manufacturer of the defective product is established outside the Union or cannot be identified, the importer of the defective product ~~and~~, the authorised representative of the manufacturer ~~can be held~~, the fulfilment service provider, the provider of an online platform and the distributor of the product can be held jointly and severally liable for damage caused by that product.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 7 – paragraph 2 a (new)

2a. The manufacturer cannot be identified if the claimant requests an economic operator listed in paragraph 2 to identify the manufacturer and the requested economic operator fails to provide the claimant with all the information necessary to identify and contact the manufacturer, within 1 month of receiving the request.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 7 – paragraph 5

5. Member States shall ensure that where a manufacturer under paragraph 1 cannot be identified or, where the manufacturer is established outside the Union, an economic operator under paragraph 2 or 3 cannot be identified, each distributor of the product can be held liable where: (a) the claimant requests that distributor to identify the economic operator or the person who supplied the distributor with the product; and (b) the distributor fails to identify the economic operator or the person who supplied the distributor with the product within 1 month of receiving the request.deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 7 – paragraph 6

6. Paragraph 5 shall also apply to any provider of an online platform that allows consumers to conclude distance contracts with traders and that is not a manufacturer, importer or distributor , provided that the conditions of Article 6(3) set out in Regulation (EU)…/… of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act)55are fulfilled. _________________ 55 +OP: Please insert in the text the number of the Directive contained in document PE-CONS 30/22 (2020/0361(COD)) and insert the number, date, title and OJ reference of that Directive in the footnote.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 7 – paragraph 6

6. Paragraph 5 shall also apply to any provider of an online platform that allows consumers to conclude distance contracts with traders and that is not a manufacturer, importer or distributor , provided that the conditions of Article 6(3) set out in Regulation (EU)…/… of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act)55are fulfilled. _________________ 55 +OP: Please insert in the text the number of the Directive contained in document PE-CONS 30/22 (2020/0361(COD)) and insert the number, date, title and OJ reference of that Directive in the footnote.deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 8 – paragraph 1

1. Member States shall ensure that national courts are empowered, upon request of an injured person claiming or considering claiming compensation for damage caused by a defective product (‘the claimant’) who has presented ~~facts and evidence sufficient~~reasonably available facts to support the plausibility of the claim for compensation, to order the defendant to disclose relevant evidence that is at its disposal including before the commencement of proceedings on the merits of the case.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 8 – paragraph 1

1. Member States shall ensure that national courts are empowered, upon request of a~~n injured~~ person who is claiming compensation for damage ~~caused by a defective product (‘the claimant’) who has presented facts and evidence sufficient to support the plausibility of the claim for compensation,~~or is considering to do so to order the defendant to disclose relevant evidence that is at its disposal.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 8 – paragraph 1 a (new)

1a. The evidence to be disclosed pursuant of paragraph 1 shall be delivered to the claimant in the most accessible manner possible, both in terms of the form of its delivery and its content.

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 8 – paragraph 3

3. When determining whether the disclosure is proportionate, national courts shall consider the legitimate interests of all parties, including third parties concerned, in particular in relation to the protection of confidential information and trade secrets within the meaning of Article 2, point 1, of Directive (EU) 2016/943. Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the action for liability.

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 8 – paragraph 4 b (new)

4b. This Article shall not prevent Member States from maintaining or introducing rules that are more favourable to claimants.

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 9 – paragraph 1

1. Member States shall ensure that a claimant is required to prove the damage suffered. Member States shall ensure that, when a claimant establishes before a national court facts from which the defectiveness of the product~~, the damage suffered~~ and/or the causal link between the defectiveness and the damage, or both, may be presumed, it shall be for the defendant to prove the lack of defectiveness or the lack of causal link, or both.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 9 – paragraph 1

1. Member States shall ensure that a claimant is required to prove the d~~efectiveness of the product, the damage suffered and the causal link between the defectiveness and the damage~~amage suffered.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 9 – paragraph 1 a (new)

1a. Member States shall ensure that, when the claimant proves the damaged suffered, the defectiveness of the product and the causal link between the defectiveness and the damage shall be presumed unless rebutted by the defendant.

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 9 – paragraph 2

2. The defectiveness of the product shall be presumed, where any of the following conditions are met: (a) the defendant has failed to comply with an obligation to disclose relevant evidence at its disposal pursuant to Article 8(1); (b) the claimant establishes that the product does not comply with mandatory safety requirements laid down in Union law or national law that are intended to protect against the risk of the damage that has occurred; or (c) the claimant establishes that the damage was caused by an obvious malfunction of the product during normal use or under ordinary circumstances.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 9 – paragraph 2

2. The defectiveness of the product shall be presumed, where any of the following conditions are met: (a) the defendant has failed to comply with an obligation to disclose relevant evidence at its disposal pursuant to Article 8(1); (b) the claimant establishes that the product does not comply with mandatory safety requirements laid down in Union law or national law that are intended to protect against the risk of the damage that has occurred; or (c) the claimant establishes that the damage was caused by an obvious malfunction of the product during normal use or under ordinary circumstances.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 9 – paragraph 3

3. The causal link between the defectiveness of the product and the damage shall be presumed, where it has been established that the product is defective and the damage caused is of a kind typically consistent with the defect in question.deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 9 – paragraph 3

3. The causal link between the defectiveness of the product and the damage shall be presumed, where it has been established that the product is defective and the damage caused is of a kind typically consistent with the defect in question.deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 9 – paragraph 4

4. Where a national court judges that the claimant faces excessive difficulties, due to technical or scientific complexity, to prove the defectiveness of the product or the causal link between its defectiveness and the damage, or both, the defectiveness of the product or causal link between its defectiveness and the damage, or both, shall be presumed where the claimant has demonstrated, on the basis of sufficiently relevant evidence, that: (a) the product contributed to the damage; and (b) it is likely that the product was defective or that its defectiveness is a likely cause of the damage, or both. The defendant shall have the right to contest the existence of excessive difficulties or the likelihood referred to in the first subparagraph.deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Adriana MALDONADO LÓPEZ, Brando BENIFEI

Proposal for a directive
Article 9 – paragraph 4 – subparagraph 2

~~The defendant shall have the right to contest the existence of excessive difficulties or the likelihood referred to in the first subparagraph.~~deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 9 – paragraph 5

~~5. The defendant shall have the right to rebut any of the presumptions referred to in paragraphs 2, 3 and 4.~~deleted

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 10 – paragraph 1 – point c

(c) ~~that it is probable~~ that the defectiveness that caused the damage did not exist when the product was placed on the market, put into service or, in respect of a distributor, made available on the market, or that this defectiveness came into being after that moment;

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 10 – paragraph 1 – point d

(d) that the defectiveness is due to compliance of the product with mandatory regulations issued by public authorities and that the economic operator exercised all reasonable due care required by the circumstances ;

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Adriana MALDONADO LÓPEZ, Brando BENIFEI

Proposal for a directive
Article 10 – paragraph 1 – point d

(d) that the defectiveness is due to compliance of the product with mandatory regulations issued by public authorities and that the economic operator exercised all reasonable due care required by the circumstances;

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 10 – paragraph 1 – point e

(e) in the case of a manufacturer, that the objective state of scientific and technical knowledge at the time when the product was placed on the market, put into service or in the period in which the product was within the manufacturer’s control was not such that the defectiveness could be discovered;deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 10 – paragraph 1 – point e

(e) in the case of a manufacturer, that the objective state of scientific and technical knowledge at the time when the product was placed on the market, put into service or in the period in which the product was within the manufacturer’s control was not such that the defectiveness could be discovered;deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 10 – paragraph 2 – introductory part

2. By way of derogation from paragraph 1, point (c), an economic operator shall not be exempted from liability, where the defectiveness of the product is due to including but not limited to any of the following, provided that it is within the manufacturer’s control:

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 10 – paragraph 2 – introductory part

2. By way of derogation from paragraph 1, point (c), an economic operator shall not be exempted from liability, where the defectiveness of the product ~~is due to any of the following, provided that it is within the manufacturer’s control~~occurs under the manufacturer’s control, including when it is due to any of the following:

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 10 – paragraph 2 – point a

(a) a ~~related service~~digital element;

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 10 – paragraph 2 – point a

(a) a ~~related service~~digital element;

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 12 – paragraph 1

1. Member States shall ensure that the liability of an economic operator is not reduced or disallowed when the damage is caused both by the defectiveness of a product and by an event outside the control of the economic operator, such as one attributable to an act or omission of a third party.

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 14 – paragraph 2

2. Member States shall ensure that the rights conferred upon the injured person pursuant to this Directive ~~are extinguished upon the expiry of~~shall be applicable during the expected lifespan of a product or for a limitation period of 130 years from the date on which the actual defective product which caused the damage was placed on the market, put into service or substantially modified as referred to in Article 7(4), whichever is longer unless a claimant has, in the meantime, initiated proceedings before a national court against an economic operator that can be held liable pursuant to Article 7.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 14 – paragraph 2

2. Member States shall ensure that the rights conferred upon the injured person pursuant to this Directive are extinguished upon the expiry of a limitation period of 130 years from the date on which the actual defective product which caused the damage was placed on the market, put into service or substantially modified as referred to in Article 7(4), unless a claimant has, in the meantime, initiated proceedings before a national court against an economic operator that can be held liable pursuant to Article 7.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 14 – paragraph 3

3. By way of exception from paragraph 2, where an injured person has not been able to initiate proceedings within 10 years due to the latency of a personal injury, the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a limitation period of 15 years.deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 14 – paragraph 3

3. By way of exception from paragraph 2, where an injured person has not been able to initiate proceedings within 10 years due to the latency of a personal injury, the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a limitation period of 15 years.deleted

2023/05/04
Committee: IMCO JURI

René REPASI, Christel SCHALDEMOSE, Maria-Manuel LEITÃO-MARQUES, Brando BENIFEI, Adriana MALDONADO LÓPEZ

Proposal for a directive
Article 15 – paragraph 2

2. The Commission ~~may~~shall set up and maintain a publicly available database containing the judgments referred to in paragraph 1. In addition to paragraph 1, this database shall contain judgments delivered by the Court of Justice of the European Union related to proceedings launched pursuant to this Directive.

2023/05/04
Committee: IMCO JURI

Maria-Manuel LEITÃO-MARQUES, René REPASI, Ibán GARCÍA DEL BLANCO, Brando BENIFEI

Proposal for a directive
Article 15 – paragraph 2

2. The Commission ~~may~~shall set up and maintain a publicly available database containing the judgments referred to in paragraph 1 and judgments delivered by the Court of Justice of the European Union in relation to proceedings launched pursuant to this Directive.

2023/05/04
Committee: IMCO JURI

64 Amendments of Brando BENIFEI related to 2022/0302(COD)

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