20 Amendments of Romana TOMC related to 2022/0302(COD)
Amendment 98 #
Proposal for a directive
Recital 17
Recital 17
(17) In the interests of legal certainty, it should be clarified that personal injury includes medically recognised damage to psychological health, that is to say an adverse effect on the victim’s psychological integrity of such gravity or intensity that it affects the victim’s general state of health and that it cannot be resolved without medical treatment.
Amendment 110 #
Proposal for a directive
Recital 19
Recital 19
(19) In order to protect consumers, damage to any property owned by a natural person should be compensated. Since property is increasingly used for both private and professional purposes, it is appropriate to provide for the compensation of damage to such mixed- use property. In light of this Directive’s aim to protect consumers, property used exclusively for professional purposes should be excluded from its scopeProperty used exclusively for professional purposes by small and micro enterprises should be covered by this Directive unless bilateral arrangements are specified in a separated contract between stakeholders.
Amendment 124 #
Proposal for a directive
Recital 27
Recital 27
(27) In order to ensure that injured persons have an enforceable claim for compensation where a manufacturer is established outside the Union, it should be possible to hold the importer of the product and the authorised representative of the manufacturer liable. The authorized representative should be verifiable and have access to personnel with sufficient and relevant knowledge and experience to have a meaningful impact. 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).
Amendment 132 #
Proposal for a directive
Recital 29
Recital 29
(29) In the transition from a linear to a circular economy, products are designed to be more durable, reusable, reparable and upgradable. The Union is also promoting innovative and sustainable ways of production and consumption that prolong the functionality of products and components, such as remanufacturing, refurbishment and repair.47. In addition, products allow for modifications through changes to software, including upgrades. When a product is modified substantially outside the control of the original manufacturer, it is considered to be a new product and it should be possible to hold the person that made the substantial modification liable as a manufacturer of the modified product, since under relevant Union legislation they are responsible for the product’s compliance with safety requirements. Whether a modification is substantial is determined according to criteria set out in relevant Union and national safety legislation, such as modifications that change the original intended functions or affect the product’s compliance with applicable safety requirements. In the interests of a fair apportionment of risks in the circular economy, an economic operator that makes a substantial modification should be exempted from liability if it can prove that the damage is related to a part of the product not affected by the modification. Economic operators that carry out repairs or other operations that do not involve substantial modifications should not be subject to liability under this Directive. _________________ 47 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A new Circular Economy Action Plan for a cleaner and more competitive Europe, COM/2020/98 final.
Amendment 178 #
Proposal for a directive
Article 1 – paragraph 1
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. This Directive shall also cover the liability of economic operators that are small and micro enterprises for damage suffered by legal persons if this liability was not specified in a separated contract between the parties.
Amendment 199 #
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 software; For the purpose of this directive, “software” excludes free and open-source software developed or supplied outside the course of a commercial activity;
Amendment 224 #
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 229 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point b – point iii
Article 4 – paragraph 1 – point 6 – point b – point iii
(iii) property used exclusively for professional purposes, unless among small and micro enterprises, when covered by business to business contractual agreements;
Amendment 231 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point c
Article 4 – paragraph 1 – point 6 – point c
(c) loss or corruption of data that is not used exclusively for professional purposes; unless for small and micro enterprises that are not covered by business to business contractual agreements;
Amendment 238 #
Proposal for a directive
Article 4 – paragraph 1 – point 7 a (new)
Article 4 – paragraph 1 – point 7 a (new)
(7a) 'medically recognised harm to psychological health' means adverse psychological effects that are supported by expert evidence and amount to a diagnosed illness according to WHO criteria and that cannot be resolved without medical treatment, excluding stress and anxiety;
Amendment 244 #
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 develops, deploys, manufactures or produces a product or has a product designed or manufactured, orand who markets that product under its name or trademark or who develops, manufactures or produces a product for its own use;
Amendment 254 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 a (new)
Article 4 – paragraph 1 – point 17 a (new)
(17a) 'Authorised representative' means any natural or legal person established within the Union who has received and accepted a written mandate from a manufacturer, to act on the manufacturer’s behalf in relation to specified tasks with regard to the latter’s obligations under this directive;
Amendment 258 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 b (new)
Article 4 – paragraph 1 – point 17 b (new)
Amendment 262 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 c (new)
Article 4 – paragraph 1 – point 17 c (new)
(17c) ‘obvious malfunction’ means the undisputable failure of a product to operate normally during its designated use.
Amendment 263 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that any natural person or legal person as specified in Article 1, who suffers damage caused by a defective product (‘the injured person’) is entitled to compensation in accordance with the provisions set out in this Directive.
Amendment 323 #
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.
Amendment 339 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States shall ensure that national courts are empowered, within the framework of the applicable procedural law of the Member States and the Directive (EU) 2016/943 of the European Parliament and of the Council, 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 evidence that is at its disposal.
Amendment 387 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1 – point b
Article 9 – paragraph 4 – subparagraph 1 – point b
(b) it isfactual evidence suggests that it is highly likely that the product was defective or that its defectiveness is an such a way that is a highly likely cause of the damage, or both.
Amendment 421 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Member States shall ensure that the liability of an economic operator pursuant to this Directive is not, in relation to the injured person, limited or excluded by a contractual provision or by national law. This does not affect the ability of economic entities that are small and micro enterprises to commercially agree on distribution of liability as between themselves.
Amendment 436 #
Proposal for a directive
Article 14 – paragraph 3 a (new)
Article 14 – paragraph 3 a (new)
3a. A software update or upgrade which does not amount to a substantial modification according to Article 7(4) shall not trigger or restart the limitation period referred to in paragraph 2.