Activities of Kosma ZŁOTOWSKI related to 2022/0302(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on liability for defective products
Amendments (61)
Amendment 69 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) In order not to hamper innovation, liability for defective products should not apply to damage arising from free and open-source software, standalone software and to new innovative software.
Amendment 95 #
Proposal for a directive
Recital 16
Recital 16
(16) In recognition of the growing relevance and value of intangible assets, the loss or corruption of data, such as content deleted from a hard drive, should also be compensated, including the cost of recovering or restoring the data. As a result, tThe protection of consumers requires compensation for material losses resulting not only from death or personal injury, such as funeral or medical expenses or lost income, and from damage to property, but also for loss or corruption of data. Nevertheless, c. Compensation for infringements of Regulation (EU) 2016/679 of the European Parliament and of the Council41 , Directive 2002/58/EC of the European Parliament and of the Council42 , Directive (EU) 2016/680 of the European Parliament and of the Council43 and Regulation (EU) 2018/1725 of the European Parliament and of the Council44is not affected by this Directive. _________________ 41 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (OJ L 119, 4.5.2016, p. 1). 42 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (OJ L 201, 31.7.2002, p. 37). 43 Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L 119, 4.5.2016, p. 89. 44 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, OJ L 295, 21.11.2018, p. 39 is not affected by this Directive.
Amendment 97 #
Proposal for a directive
Recital 17
Recital 17
Amendment 104 #
Proposal for a directive
Recital 18
Recital 18
(18) While Member States should provide full and proper compensation for all material losses resulting from death, or personal injury, or damage to or destruction of property and data loss or corruption, rules on calculating compensation should be laid down by Member States. Furthermore, this Directive should not affect national rules relating to non-material damage.
Amendment 136 #
Proposal for a directive
Recital 30
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 sometimes undermine the fair apportionment of risk, in particular in cases involving technical or scientific complexity.
Amendment 140 #
Proposal for a directive
Recital 32
Recital 32
(32) In respect of trade secrets within the meaning of Directive (EU) 2016/943 of the European Parliament and of the Council48, national courts should be empowered to take specific measures to ensure the confidentiality of trade secrets during and after the proceedings, while achieving a fair and proportionate balance between the interest of the trade-secret holder to secrecy and the interest of the injured person. This should include at least measures to restrict access to documents containing trade secrets or alleged trade secrets and access to hearings to a limited number of people, or allowing access to redacted documents or transcripts of hearings. When deciding on such measures, national courts should take into account: (i) the need to ensure the right to an effective remedy and to a fair trial; (ii) the legitimate interests, including the amount of damage, of the parties and, where appropriate, of third parties; and (iii) any highly potential serious harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures. _________________ 48 Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1).
Amendment 145 #
Proposal for a directive
Recital 33
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.
Amendment 150 #
Proposal for a directive
Recital 34
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, gGiven 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.
Amendment 154 #
Proposal for a directive
Recital 35
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 very likely cause of the damage.
Amendment 168 #
Proposal for a directive
Recital 42
Recital 42
Amendment 173 #
Proposal for a directive
Recital 44
Recital 44
(44) Since substantially modified products are essentially new products,may be in some cases considered new products, in such cases the limitation period should restart after a product has been substantially modified, for example as a result of remanufacturing, that modify a product in such a way that its compliance with the applicable safety requirements may be affected. The product should be considered substantially modified in case it is labelled as such.
Amendment 183 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to products placed on the market or put into service after [OP, please insert the date: 124 months after entry into force].
Amendment 187 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. This Directive shall not apply to damage arising from standalone software and free and open-source software developed or supplied outside the course of a commercial activity.
Amendment 188 #
Proposal for a directive
Article 2 – paragraph 2 b (new)
Article 2 – paragraph 2 b (new)
2b. This Directive shall not apply to the software developed and deployed by microenterprises as defined in Article 3 (1) of Directive 2013/34/EU for the period of 5 years after its placement on the market. In such cases, the software deployer shall informed consumers about this exemption.
Amendment 197 #
Proposal for a directive
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
Where another Union act governing specific product contains rules on the liability for damage caused by defective products, only the rules of that Union act shall apply to those specific products, unless provided otherwise in that act. In that case, this Directive shall not apply.
Amendment 198 #
Proposal for a directive
Article 4 – paragraph 1 – point 1
Article 4 – paragraph 1 – point 1
(1) ‘product’ means all movables, even if integrated into another movable or into an immovable. ‘Product’ includes electricity, digital manufacturing files and softwareany software embedded into the product, open-source software developed or supplied outside the course of a commercial activity shall not be considered as product;
Amendment 202 #
Proposal for a directive
Article 4 – paragraph 1 – point 1 a (new)
Article 4 – paragraph 1 – point 1 a (new)
(1a) ‘Software’ means the part of an electronic information system which consists of computer code which is a part of other product, excluding open-source software, application programming interfaces and software development kits;
Amendment 205 #
Proposal for a directive
Article 4 – paragraph 1 – point 3
Article 4 – paragraph 1 – point 3
(3) ‘component’ means any item, whether tangible or intangible including embedded software or software intended as a safety component of a product, or any related service, that is integrated into, or inter-connected with, a product by the manufacturer of that product or within that manufacturer’s control;
Amendment 210 #
Proposal for a directive
Article 4 – paragraph 1 – point 3 a (new)
Article 4 – paragraph 1 – point 3 a (new)
(3a) ‘safety component of a product’ means a component of a product which fulfils a safety function for that product or the failure or malfunctioning of which endangers the health and safety of persons or property;
Amendment 214 #
Proposal for a directive
Article 4 – paragraph 1 – point 4
Article 4 – paragraph 1 – point 4
(4) ‘related service’ means a digital service that is integrated into, or inter- connected with, a product in such a way that its absence would prevent the product from performing one or more of its core functions;
Amendment 218 #
Proposal for a directive
Article 4 – paragraph 1 – point 5
Article 4 – paragraph 1 – point 5
(5) ‘manufacturer’s control’ means that the manufacturer of a product explicitly authorises a) the integration, inter- connection or supply by a third party of a component including the specific software updates or upgrades, or b) the modification of the product;
Amendment 223 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point a
Article 4 – paragraph 1 – point 6 – point a
(a) death or personal injury, including medically recognised harm to psychological health;
Amendment 226 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point a
Article 4 – paragraph 1 – point 6 – point a
(a) death or personal injury, includingwith the exception of medically recognised harm to psychological health;
Amendment 227 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point b – introductory part
Article 4 – paragraph 1 – point 6 – point b – introductory part
(b) harmdamage to, or destruction of, any property with a lower threshold of 500 EUR, except:
Amendment 230 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point c
Article 4 – paragraph 1 – point 6 – point c
Amendment 237 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 a (new)
Article 4 – paragraph 1 – point 6 a (new)
Amendment 245 #
Proposal for a directive
Article 4 – paragraph 1 – point 11
Article 4 – paragraph 1 – point 11
(11) ‘manufacturer’ means any natural or legal person who deveplopys, manufactures or produces a product or has a product designed or manufactured, or who markets that product under its name or trademark or who deveplopys, manufactures or produces a product for its own use;
Amendment 247 #
Proposal for a directive
Article 4 – paragraph 1 – point 11 a (new)
Article 4 – paragraph 1 – point 11 a (new)
(11a) “software deployer” – is a natural or legal person taking a decision to deploy the software with a concrete functionality and characteristics and puts it into use;
Amendment 255 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 a (new)
Article 4 – paragraph 1 – point 17 a (new)
(17a) ‘trade secret’ means trade secret as defined in Article 2, point (1), of Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure;
Amendment 260 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 b (new)
Article 4 – paragraph 1 – point 17 b (new)
(17b) ‘obvious malfunction’ means a self-evident, indisputable and easily recognisable failure to operate or function in the normal or correct manner :
Amendment 277 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) the reasonably foreseeable use and misuse ofintended use the product;
Amendment 282 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) the effect on the product of any ability to continue to learn after deploymentits placement on the market or service;
Amendment 283 #
Proposal for a directive
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
Amendment 287 #
Proposal for a directive
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
Amendment 293 #
Proposal for a directive
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
Amendment 301 #
1a. A product shall be considered defective when it does not comply with mandatory safety-relevant cybersecurity requirements under EU or national law.
Amendment 303 #
Proposal for a directive
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. A product or related service shall not be considered defective if: (a) an integrated software contains bugs, glitches or flaws of a type that the public at large should expect; or (b) software updates or upgrades are issued for the product or related service.
Amendment 314 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
Amendment 321 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Any natural or legal person that modifies a product that has already been placed on the market or put into service shall be considered a manufacturer of the product for the purposes of paragraph 1, where the modification is considered substantial under relevant Union or national rules on product safety and is undertaken outside the original manufacturer’s control or not carried out on behalf of the manufacturer and where the product is labelled as substantially modified by any person that modifies a product.
Amendment 327 #
Proposal for a directive
Article 7 – paragraph 5 – introductory part
Article 7 – paragraph 5 – introductory part
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:
Amendment 334 #
Proposal for a directive
Article 7 – paragraph 6
Article 7 – paragraph 6
6. Paragraph 5 shall also apply to any fulfilment service provider and 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 2022/2065 are fulfilled and it has failed to comply with Article 20(5) of Regulation (EU) …… the General Product Safety Regulation.
Amendment 338 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States shall ensure that national courts are empowered, upon request of an injured person 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, to order the defendant to disclose relevant non-confidential evidence that is at its disposal in accordance with national procedural law, subject to the applicable Union and national rules on confidentiality and proportionality. The Member States shall ensure that the defendant shall not disclose source code.
Amendment 347 #
Proposal for a directive
Article 8 – paragraph 3
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 , the extent to which the claim or defence is supported by available facts and evidence; (b) the scope and cost of disclosure. The Member State shall ensure preventing non-specific searches for information which is unlikely to be of relevance for the parties in the Claim.
Amendment 352 #
Proposal for a directive
Article 8 – paragraph 4 a (new)
Article 8 – paragraph 4 a (new)
4a. Member States shall ensure that those from whom disclosure is sought are provided with an opportunity to be heard before disclosure.
Amendment 361 #
Proposal for a directive
Article 9 – paragraph 2 – point a
Article 9 – paragraph 2 – point a
Amendment 369 #
Proposal for a directive
Article 9 – paragraph 2 – point c
Article 9 – paragraph 2 – point c
(c) the claimant establishes that the damage was caused by an obvious malfunction of the product during normalintended use or under ordinary circumstances.
Amendment 371 #
Proposal for a directive
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2a. The defectiveness of the product shall not be presumed if the defendant demonstrates that sufficient evidence and expertise is accessible for the claimant to prove the defectiveness of the product, the causal link between the defectiveness and the damage, or both.
Amendment 379 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1 – introductory part
Article 9 – paragraph 4 – subparagraph 1 – introductory part
Where a national court judges that the claimant faces excessive difficulties, due to demonstrably technical or scientific complexity, to prove the defectiveness of the product or the causal link between its defectiveness and the damage, or both, in case of substantially high damage and the particularly vulnerable situation of the claimant, 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:
Amendment 384 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1 – point a
Article 9 – paragraph 4 – subparagraph 1 – point a
(a) the product contributed to the severe damage; and
Amendment 388 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1 – point b
Article 9 – paragraph 4 – subparagraph 1 – point b
(b) it is very likely that the product was defective or that its defectiveness is a very likely cause of the damage, or both.
Amendment 391 #
Proposal for a directive
Article 9 – paragraph 4 a (new)
Article 9 – paragraph 4 a (new)
4a. Article 9(4) shall only apply to high-risk AI-systems under the [Directive (EU) …../….. AI Act].
Amendment 404 #
Proposal for a directive
Article 10 – paragraph 1 – point g a (new)
Article 10 – paragraph 1 – point g a (new)
(ga) the defectiveness of the product was caused by the user not installing a software update or an upgrade supplied by the manufacturer.
Amendment 412 #
Proposal for a directive
Article 10 a (new)
Article 10 a (new)
Article10a Manifestly unfounded cases Member States shall ensure that courts or administrative authorities are able to dismiss manifestly unfounded cases at the earliest possible stage of the proceedings in accordance with national law and that the claimant of manifestly unfounded cases could be held liable for damages including the reputational risks associated with dissemination of unfounded information.
Amendment 426 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. With the exception of claims relating to software update or upgrade and related services which does not amount to a substantial modification, 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 10 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.
Amendment 433 #
Proposal for a directive
Article 14 – paragraph 3
Article 14 – paragraph 3
3. By way of exception from paragraph 2, where an injured person has with all due care 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.
Amendment 435 #
Proposal for a directive
Article 14 – paragraph 3 a (new)
Article 14 – paragraph 3 a (new)
3a. Any Member State may provide that a producer's total liability for damage resulting from a death or personal injury and caused by identical items with the same defect shall be limited to an amount which may not be less than 70 million EUR.
Amendment 437 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Member States shall publish, in an easily accessible, anonymised and electronic format, any final judgment delivered by their national courts in relation to proceedings launched pursuant to this Directive as well as other relevant final judgments on product liability. The publication shall be made without delay upon notification of the full written judgment to the parties.
Amendment 443 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
The Commission shall by [OP, please insert the date: 68 years after the date of entry into force of this Directive], and every 5 years thereafter, review the application of this Directive and submit a report to the European Parliament, to the Council and to the European Economic and Social Committee, including information about a) the total number or qualified estimation of claims, divided into categories: number of successful, settled and dismissed successful or qualified estimation; b) the total number or qualified estimation of economic operators claimed for defective products divided by their type or qualified estimation ; c) average costs of the claims for different types of economic operators, including persons performing remanufacturing, refurbishment and report to the European Parliament, to the Council and to the European Economic and Social Committee. air; d) the costs of this Directive for economic operators as a percentage of operation costs; e) net benefit of this Directive or its qualified estimation for consumers; f) impact of this Directive on the insurance premiums; g) availability of insurance and other products to cover risks of economic operators in relation to this Directive; h) whether the requirements set out in Articles 8 remain appropriate to pursue the objectives of this Directive and to protect legitimate interests of economic operators; i) comparison of the protection given by this directive with other OECD countries / world leading economies.
Amendment 445 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
The Commission shall clearly specify each methodology used for calculation of any used qualified estimation. The Commission shall gather information for this report without broadening reporting obligation for economic operators using information from all relevant and reliable sources, including European institutions, national competent authorities or internationally recognised bodies and organisations.
Amendment 446 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Directive 85/374/EEC is repealed with effect from [OP, please insert the date: 124 months after the date of entry into force of this Directive]. However, it shall continue to apply with regard to products placed on the market or put into service before that date.
Amendment 447 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1
Article 18 – paragraph 1 – subparagraph 1
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [OP, please insert the date: 124 months after entry into force of this Directive]. They shall forthwith communicate to the Commission the text of those provisions.