Activities of Sergey LAGODINSKY 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
Legal basis opinions (0)
Amendments (86)
Amendment 61 #
Proposal for a directive
Recital 1
Recital 1
(1) Council Directive 85/374/EEC39lays down common rules on liability for defective products with the aim of providing compensation for damage suffered by natural persons caused by defective products and with the aim of removing divergences between the legal systems of Member States that may distort competition and affect the movement of goods within the internal market, and that entail a differing degree of protection of the consumer against damage to health or property caused by such products. _________________ 39 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 (OJ L 210, 7.8.1985, p. 29).
Amendment 63 #
Proposal for a directive
Recital 4
Recital 4
(4) A revision of Directive 85/374/EEC is also needed in order to ensure coherence and consistency with product safety and market surveillance legislation at Union and national level. In addition, a revision is necessary to complement Union and national laws on extra-contractual liability, providing for compensation and a high level of protection for persons injured by damage caused by defective products. Furthermore, there is a need to clarify basic notions and concepts to ensure coherence and legal certainty and to reflect recent case law of the Court of Justice of the European Union.
Amendment 68 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) In order not to hamper innovation or research, this Directive should not apply to free and open-source software supplied outside the course of a commercial activity, including its source code and modified versions, that is openly shared and freely accessible, usable, modifiable and redistributable. However, where free and open-source software supplied in exchange for a price or personal data is used other than exclusively for improving the security, compatibility or interoperability of the software, the Directive should apply.
Amendment 70 #
Proposal for a directive
Recital 8
Recital 8
(8) In order to create a genuine internal market with a high and uniform level of consumer protection, and to reflect the case law of the Court of Justice, Member States should not be, in respect of matters within the scope of this Directive, maintain or introduce more, or less, stringent provisions than those laid down in this Directive. However, the high risk of serious damages linked to medicinal products, medical devices and health technologies would require a higher level of consumer protection. Also taking into account that the use or consumption of these products is highly conditioned by the prescriptions of doctors and specialists of the medical sector and patients do not have the necessary competences and knowledge in order to understand if such products could be defective and could cause damage. Therefore, Member States should be able to maintain or introduce more stringent provisions compared to those laid down in this Directive where the damage is caused by medicinal products, medical devices and health technologies.
Amendment 77 #
Proposal for a directive
Recital 12
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, and is capable of causing damage through its execution. The risk of damage is proportionate to the extent to which a software is essential to the functioning of a product into which it is integrated or inter-connected with, and in how far it contributes to one or more of the function of the essential product, or in how far its absence would prevent the product from performing one or more of its core functions. In particular where software that ordinarily and of itself does not pose a significant risk of damage is included in a product with higher safety expectations, such as in case of life- sustaining medical devices within the meaning of article 2(1) Regulation (EU) 2017/745, or payment services within the meaning of article 4(3) of Directive (EU) 2015/2366, the assessment of defectiveness leading to damage should take the original intent of the software producer into account. 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 technologiesa communication network, cloud technologies, or supplied through a software as-a-service model . 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)], and including deployers that make substantial modifications to a software, should be treated as a manufacturer.
Amendment 80 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) It is necessary to clarify that software in its own right, when specifically intended by the manufacturer to be used for one or more of the medical purposes set out in the definition of a medical device, qualifies as a medical device, while software for general purposes, even when used in a healthcare setting, or software intended for life-style and well-being purposes is not a medical device. The qualification of software, either as a device or an accessory, is independent of the software's location or the type of interconnection between the software and a device.
Amendment 81 #
Proposal for a directive
Recital 12 b (new)
Recital 12 b (new)
(12b) Individual natural persons typically employed in the context of a non- personal professional activity in the development, manufacturing, production or design of a product, that do not exert control over the manufacturing, integration, placing on the market or putting into service of the product should not be considered manufacturers in the sense of this Directive. The occasional refurbishing of products and placing on the market or putting into service by an individual in a non-professional capacity should not be considered commercial acting.
Amendment 82 #
Proposal for a directive
Recital 13
Recital 13
Amendment 89 #
Proposal for a directive
Recital 14
Recital 14
(14) Digital manufacturing files, which contain the functional information necessary to produce a tangible item by enabling the automated control of machinery or tools, such as drills, lathes, mills and 3D printers, should be considered as products, in order to ensure consumer protection in cases where such files are defective. For the avoidance of doubt, it should also be clarified that raw materials and electricity is aare products.
Amendment 91 #
Proposal for a directive
Recital 15
Recital 15
(15) It is becoming increasingly common for digital services to be integrated in or inter-connected with a product in such a way that the absence of the service would prevent the product from performing one of its functions, for example the continuous supply of traffic data in a navigation system. The relevant functions that should be considered are those that have been ascribed to the product by its manufacturer or the functions that an average person would reasonably expect in light of the description of the product provided by the manufacturer. While this Directive should not apply to services as such, it is necessary to extend no-fault liability to such digital services as they determine the safety of the product just as much as physical or digital components. Such related services should be considered as components of the product to which they are inter-connected, when they are within the control of the manufacturer of that product, in the sense that they are supplied by the manufacturer itself or that the manufacturer recommends them or otherwise influences their supply by a third party.
Amendment 93 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) Related services and other components, including software updates and upgrades, should be considered to be within the manufacturer's control where they are integrated, inter-connected or supplied by the manufacturer itself or where the manufacturer authorises or consents, whether explicitly or implicitly, to their supply by a third party. In addition, once a product has been placed on the market, it should be considered to be within the manufacturer’s control in so far as the manufacturer retains the ability to supply software updates or upgrades, or to authorise or consent to their supply by a third party.
Amendment 94 #
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, the 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 when consumers cannot access data the way they could before the damage and they have to pay a price for recovering or restoring that data. However, when consumers have negligently contributed to the cause of the damage, including when they do not install the updates provided by the manufacturer, or has not performed appropriate backups, they should not be compensated or they should be partially compensated. As a result, the 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. In compensating consumers for the loss or corruption of data, due account should be taken of the distribution model of the software, for example whether it was supplied in the context of a commercial activity or in the non-professional capacity of an individual natural person. Compensation should be proportionate to the level of incurred damages by consumers and not have detrimental effects to the ecosystem of usfl and consumer-friendly software provided free of charge over the internet, and in particular under free and open-source licences. Nevertheless, 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 Council43and 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.
Amendment 103 #
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. Member States should ensure that their national rules on calculating compensation allow for injured persons to obtain full and proper compensation from the economic operator who is ultimately attributable, or from any relevant party.
Amendment 108 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18a) Member States should provide full and proper compensation for non- material damage under the conditions provided by this Directive.
Amendment 111 #
Proposal for a directive
Recital 20
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, 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. Neither the collaborative development of free and open-source software nor making them available on open repositories should constitute a placing on the market or putting into service. A commercial activity, within the understanding of making available on the market, might however be characterised by charging a price, with the exception of transactions between micro enterprises for a free software component but also by charging a price for technical support services, by providing a software platform through which the provider monetises other services, or by the use of personal data for reasons other than exclusively for improving the security, compatibility, interoperability or interoperability of the software. Occasional supplies by charities or hobbyists should not be considered as taking place in a business related context.
Amendment 115 #
Proposal for a directive
Recital 22
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. 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 purposereasonably foreseeable use, the presentation, the objective characteristics and the properties of the product in question as well as its expected lifespan, security features, and the specific requirements of the group of users for whom the product is intended. In addition, the compliance with relevant product safety requirements laid down in Union and national law should also be taken into account, in particular if such a non-compliance enhanced the risk of causing harm of the relevant type suffered by the injured person and that risk has materialised. However, the economic operator should not be liable if it proves that the harm suffered by the injured person would have also been caused if it would have complied with the relevant mandatory requirements under Union and national law. 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.
Amendment 118 #
Proposal for a directive
Recital 23
Recital 23
(23) In order to reflect the increasing prevalence of inter-connected products, the assessment of a product’s safety should also take into account the reasonably foreseeable effects of other products on the product in question. The effect on a product’s safety of its ability to learn after deploymentit is placed on the market or put into service should also be taken into account, to reflect the legitimate expectation that a product’s software and underlying algorithms are designed in such a way as to prevent hazardous product behaviour. In order to reflect that in the digital age many products remain within the manufacturer’s control beyond the moment at which they are placed on the market, the moment in time at which a product leaves the manufacturer’s control should also be taken into account in the assessment of a product’s safety. A product can also be found to be defective on account of its cybersecurity vulnerability.
Amendment 122 #
Proposal for a directive
Recital 26
Recital 26
(26) The protection of the consumer requires that any manufacturer involved in the production process can be made liable, in so far as their product or a component supplied by them is defective. Where a manufacturer integrates a defective component from another manufacturer into a product, an injured person should be able to seek compensation for the same damage from either the manufacturer of the product or from the manufacturer of the component. Due to the nature of software made available under free and open- source licences, the developer of a free and open-source software should not be made liable for a defect except to the extent the developer has placed it on the market or put it into service. Free and open-source software is often integrated in products whose ultimate use and purpose are very different from the ones initially designed by the developers. Potential defects and damages could have not been foreseen by the developers, but only by the economic operator that integrated the free and open-source software into a product or that has deployed it. That economic operator should be made liable in front of the injured person.
Amendment 129 #
Proposal for a directive
Recital 28
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 2022/2065 […/…] 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 platforms perform the role of manufacturer, importer or distributor in respect of a defective product, 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 enable the specific transaction, it should be possible to hold them liable, in 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 Union within one month of receiving the request.
Amendment 130 #
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 and subject to the same obligations of a manufacturer, 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 thatHowever, these requirements should only apply with respect to the modified part of the product, provided that the modification does not affect the product as a whole. Therefore, the liability of the person that made the substantial modification should be limited to the modified part of the product when the modification does not have an impact on the product as a whole. Whether a modification is substantial is determined according to criteria set out in relevant Union law, including under [Regulation […/…] on General Product Safety] and Regulation (EU) ..../... (Cyber Resilience Act, and national safety legislation. Modifications are considered substantial, for instance, if they 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 133 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) In particular the provision of third-party software updates or upgrades after a manufacturer has ceased to provide support for a product, can have very positive effects for the environment by contributing to the reparability and longevity of such products, and should not be disproportionately and negatively affected by this Directive.
Amendment 138 #
Proposal for a directive
Recital 31
Recital 31
(31) It is therefore necessary to facilitate potential 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 protectedtrade secrets are protected in line with Directive (EU) 2016/943 of the European Parliament and of the Council. Such evidence should also include documents that have to be created ex novo by the defendant by compiling or classifying the available evidence.
Amendment 141 #
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 of the parties and, where appropriate, of third parties; and (iii) any potential 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 147 #
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, including under [Regulation […/…] on General Product Safety] and Regulation (EU) ..../... (Cyber Resilience Act). 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 has not affixed a mandatory CE marking or where 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 155 #
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 relevantprima facie 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.
Amendment 159 #
Proposal for a directive
Recital 38
Recital 38
(38) The possibility for economic operators to avoid liability by proving that a defect came into being after they placed the product on the market or put it into service should also be restricted when a product’s defectiveness consists in the lack of software updates or upgrades necessary to address cybersecurity vulnerabilities and maintain the product’s safety. Such vulnerabilities can affect the product in such a way that it causes damage within the meaning of this Directive. In recognition of manufacturers’ responsibilities under Union law for the safety of products throughout their lifecycle, such as under Regulation (EU) 2017/745 of the European Parliament and of the Council49, manufacturers should also be liable for damage caused by their failure to supply software security updates or upgrades that are necessary to address the product’s vulnerabilities in response to evolving cybersecurity risks. Such liability should not apply where the supply or installation of such software is beyond the manufacturer’s control, for example where the owner of the product does not install an update or upgrade supplied for the purpose of ensuring or maintaining the level of safety of the product. _________________ 49 Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devic, insofar this can be reasonably expected by the owner in terms of their technical capabilities, amending Directive 2001/83/EC, Regulation (EC) No 178/2002 and Regulation (EC) No 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC (OJ L 117, 5.5.2017, p. 1)nd the knowledge required to be able to perform such update or upgrade.
Amendment 162 #
Proposal for a directive
Recital 39
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. However, this exemption should not apply in case of medicinal products, medical devices and health technologies, since these products entail a risk of rare but serious adverse reactions by their very nature. These reactions could not be foreseen even by the most advanced scientific and technical knowledge, and can only be evidenced after the product has been marketed and used by consumers. In such cases, consumers would need to be protected and they should have the right to request compensation for damages.
Amendment 164 #
Proposal for a directive
Recital 40
Recital 40
(40) Situations may arise in which two or more parties are liable for the same damage, in particular where a defective component is integrated into a product that causes damage. In such a case, the injured person should be able to seek compensation both from the manufacturer that integrated the defective component into its product and from the manufacturer of the defective component itself. In order to ensure consumer protection, all parties should be held liable jointly and severally in such situations, with compensation mechanisms allowing the injured person to recover for the total relevant damage. However, the liability of the manufacturer of the defective component should be limited to the chain of commercial transactions. It should therefore cover only situations where the manufacturer has integrated a software into its product, that was placed on the market or put into service.
Amendment 165 #
Proposal for a directive
Recital 41
Recital 41
(41) Situations may arise in which the acts and omissions of persons other than a potentially liable economic operator contribute, in addition to the defectiveness of the product, to the cause of the damage suffered, such as a third party exploiting a cybersecurity vulnerability of a product. In the interests of consumer protection, where a product is defective, for example due to a vulnerability that makes the product less safe than the public at large is entitled to expect, the liability of the economic operator should not be reduced as a result of such acts or omissions. However, it should be possible to reduce or disallow the economic operator’s liability where injured persons themselves have negligently contributed to the cause of the damage, including when the injured person does not install updates or upgrades provided by the economic operator, that would have mitigated the defect, where this can be reasonably expected from the owner of the product in terms of their technical capabilities and the knowledge required to be able to perform such update or upgrade.
Amendment 169 #
Proposal for a directive
Recital 42
Recital 42
(42) The objective of consumer protection would be undermined if it were possible to limit or exclude an economic operator’s liability through contractual provisions. Therefore no contractual derogations should be permitted. Free and open source software, where the source code is openly shared and users can freely access, use, modify and redistribute the software or modified versions thereof, can contribute to research and innovation on the market. This software relies on public licenses that guarantee the freedom to run, copy, distribute, study, change and improve software. In order to ensure that such innovation is not hindered, this provision should not impact the use of such licenses. For the same reason, it should not be possible for provisions of national law to limit or exclude liability, such as by setting financial ceilings on an economic operator’s liability.
Amendment 172 #
Proposal for a directive
Recital 43
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 10 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 1520 years in cases where the symptoms of a personal injury are, according to medical evidence, slow to emerge.
Amendment 174 #
Proposal for a directive
Recital 45
Recital 45
(45) In order to facilitate harmonised interpretation of this Directive by national courts, Member States should be required to publish relevant court judgments on product liability. Furthermore, the Commission should set up and maintain a publicly available database containing such judgments as well as judgments delivered by the Court of Justice of the European Union in relation to proceedings launched pursuant to this Directive.
Amendment 180 #
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 and ensures that such persons are entitled to compensation.
Amendment 182 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to products as defined in Article 4 placed on the market or put into service after [OP, please insert the date: 12 months after entry into force].
Amendment 186 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. This Directive shall not apply to free and open-source software offered by the manufacturer under a free and open- source licence, where the consumer does not pay a price and personal data provided by the consumer are exclusively processed by the manufacturer for the purpose of improving the security, compatibility or interoperability of that specific software.
Amendment 190 #
Proposal for a directive
Article 2 – paragraph 3 – point b
Article 2 – paragraph 3 – point b
Amendment 200 #
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 or inter-connected with another movable or into an immovable. ‘Product’ includes electricity, digital manufacturing files and softwar, raw materials and software subject to the conditions laid down in this Directive;
Amendment 201 #
Proposal for a directive
Article 4 – paragraph 1 – point 1 a (new)
Article 4 – paragraph 1 – point 1 a (new)
(1a) ‘artificial intelligence system’ means an artificial intelligence system as defined in Article 3 of Regulation (EU).../... of the European Parliament and of the Council to lay down a uniform legal framework in particular for the development, marketing and use of artificial intelligence in conformity with EU values (Artificial Intelligence Act);
Amendment 203 #
(2) ‘digital manufacturing file’ means a digital version or a digital template of a movable, which contains the functional information necessary to produce a tangible item by enabling the automated control of machinery or tools ;
Amendment 206 #
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 raw materials, 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 215 #
(5) ‘manufacturer’s control’ means that the manufacturer of a product authorisesperforms or, with respect to the actions of a third party explicitly authorises or consents to a) the integration, inter-connection or supply by a third party of a component including software updates or upgrades, or b) the modification of the product, including substantial modifications;
Amendment 220 #
Proposal for a directive
Article 4 – paragraph 1 – point 6
Article 4 – paragraph 1 – point 6
Amendment 239 #
Proposal for a directive
Article 4 – paragraph 1 – point 9
Article 4 – paragraph 1 – point 9
(9) ‘making available on the market’ means any supply of a product for distribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. The collaborative development of free and open-source software or making them available on open repositories shall not constitute placing on the market;
Amendment 240 #
Proposal for a directive
Article 4 – paragraph 1 – point 10
Article 4 – paragraph 1 – point 10
(10) ‘putting into service’ means the first use of a product in the Union in the course of a commercial activity, whether in return for payment or free of charge, in circumstances in which the product has not been placed on the market prior to its first use. The collaborative development of free and open-source software or making them available on open repositories shall not constitute a putting into service;
Amendment 242 #
Proposal for a directive
Article 4 – paragraph 1 – point 10 a (new)
Article 4 – paragraph 1 – point 10 a (new)
(10a) ‘substantial modification’ means a modification, or a series of modifications, to a product after it has been placed on the market or put into service: (a) that is considered substantial under relevant Union or national rules on product safety; or (b) where relevant Union or national rules lay down no threshold on what should be considered a substantial modification, that: (i) changes the product’s original performance, purpose or type, without this being foreseen in the manufacturer’s initial risk assessment; and (ii) changes the nature of the hazard, creates a new hazard or increases the level of risk.
Amendment 243 #
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, manufactures or produces a product or has a product designed or manufactured, or who markets that product under its name or trademark thereby presenting itself as a manufacturer, or who develops, manufactures or produces a product for its own use;
Amendment 246 #
(11a) ‘deployer’ means any natural or legal person, public authority, agency or other body using a product under its authority except where the product is used in the course of a personal non- professional activity;
Amendment 248 #
Proposal for a directive
Article 4 – paragraph 1 – point 12
Article 4 – paragraph 1 – point 12
(12) ‘authorised representative’ means any natural or legal person established within the Union who has agreceived a written mandate fromwith a manufacturer to act on its behalf in relation to specified tasks;
Amendment 250 #
Proposal for a directive
Article 4 – paragraph 1 – point 15
Article 4 – paragraph 1 – point 15
(15) ‘distributor’ means any natural or legal person in the supply chain, other than the manufacturer or the importer, the importer or the authorised representative, who makes a product available on the market;
Amendment 251 #
Proposal for a directive
Article 4 – paragraph 1 – point 16
Article 4 – paragraph 1 – point 16
(16) ‘economic operator’ means the manufacturer of a product or component, the provider of a related service, the authorised representative, the importer, the fulfilment service provider or the distributor, the distributor or any other natural or legal person who is subject to obligations in relation to the manufacture of products, making them available on the market, putting them into service or maintaining them in accordance with the relevant Union harmonisation legislation;
Amendment 253 #
Proposal for a directive
Article 4 – paragraph 1 – point 17
Article 4 – paragraph 1 – point 17
(17) ‘online platform’ means online platform as defined in Article 23, point (hi), of Regulation (EU)…/… of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act)54. _________________ 54 +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
Amendment 257 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 a (new)
Article 4 – paragraph 1 – point 17 a (new)
(17a) ‘potential claimant’ means a natural or legal person who is considering but has not yet brought a claim for damages;
Amendment 265 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
Amendment 266 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Amendment 271 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) the presentationcharacteristics of the product, including its design , technical features, composition, packaging, and the instructions for assembly, installation, use and maintenance;
Amendment 274 #
Proposal for a directive
Article 6 – paragraph 1 – point a a (new)
Article 6 – paragraph 1 – point a a (new)
(aa) the presentation of the product, including the labelling, any warnings and other information regarding the product;
Amendment 275 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) the reasonably foreseeable use and, where applicable, misuse of the product, taking into account the expected life-span of a product ;
Amendment 280 #
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 deploymentit is placed on the market or put into service;
Amendment 284 #
Proposal for a directive
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) the reasonably foreseeable effect on the product of other products that can reasonably be expected to be used together with the product or to be interconnected with the product;
Amendment 288 #
Proposal for a directive
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) product safety requirementsthe compliance with relevant product safety requirements set out in Union or national law, including safety- relevant cybersecurity requirements, where such a non-compliance enhanced the risk of causing harm of the relevant type suffered by the injured person and that risk has materialised;
Amendment 294 #
Proposal for a directive
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) the specific reasonable expectations of the end- users for whom the product is intended and, where appropriate, the categories of end users at risk when using the product, in particular vulnerable persons such as children, older persons and persons with disabilities.
Amendment 304 #
Proposal for a directive
Article 7 – paragraph 1 – subparagraph 2
Article 7 – paragraph 1 – subparagraph 2
Member States shall ensure that, where a defective component has caused the product to be defective, the manufacturer of a defective component can also be held liable for the same damage. in the chain of commercial transactions for the same damage, unless the defect is attributable to the design of the product in which the component has been integrated or to the instructions given by the manufacturer of that product to the manufacturer of the component.
Amendment 308 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Without prejudice to the liability of the manufacturer, Member States shall ensure that, where the manufacturer of the defective product or component is established outside the Union, the importer of the defective product or component and the authorised representative of the manufacturer can be held liable for damage caused by that product or component.
Amendment 318 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall ensure that, where the manufacturer of the defective product is established outside the Union and neither of the economic operators referred to in paragraph 2 is established in the Union, the fulfilment service provider can be held liable for damage caused by the defective product or component.
Amendment 322 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Any natural or legal person that substantially modifies a product that has already been placedoutside the manufacturer’s control and thereafter makes it available 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 328 #
Proposal for a directive
Article 7 – paragraph 5 – point a
Article 7 – paragraph 5 – point a
(a) the claimantinjured person requests that distributor to identify the economic operator or the person who supplied the distributor with the product; and
Amendment 333 #
Proposal for a directive
Article 7 – paragraph 6
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 2022/2065 are fulfilled.
Amendment 335 #
Proposal for a directive
Article 8 – title
Article 8 – title
Amendment 336 #
Proposal for a directive
Article 8 – paragraph -1 (new)
Article 8 – paragraph -1 (new)
-1. Member States shall ensure that a potential claimant who suffers or allegedly suffers harm caused by a defective product is able to request the relevant economic operator to disclose relevant information that is at its disposal in a timely, clear and intelligible manner before considering introducing judicial claim for compensation. As regards products containing AI components, such information shall consist a minima in the information being made accessible to consumers when the product is placed on the market, which shall include, where appropriate and relevant, which functions are AI enabled, if there is human oversight, and who is responsible for the decision-making process, as well as the existing rights and processes that, according to Union and national law, allow natural persons or their representatives to object against the application of such systems to them and to seek judicial redress against decisions taken by or harm caused by AI systems, including their right to seek an explanation.
Amendment 344 #
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 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, to order the defendant to disclose relevant evidence that is at its disposal, or is considering to do so, to order the disclosure of relevant evidence that is at its disposal in a timely, clear and intelligible manner.
Amendment 346 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Member States shall ensure that national courts limit the disclosure of evidence is limited to what is necessary and proportionate to support a claimthe requests referred to in paragraph -1 and 1.
Amendment 349 #
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.
Amendment 350 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
4. Member States shall ensure that, where a defendant is ordered to disclose information that is a trade secret or an alleged trade secret, national courts are empowered, upon a duly reasoned request of a partyby the defendant, or on their own initiative, to take the specific and proportionate measures necessary to preserve the confidentiality of that information when it is used or referred to in the course of the legal proceedings.
Amendment 381 #
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 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 relevantprima facie evidence, that:
Amendment 383 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1 – point a
Article 9 – paragraph 4 – subparagraph 1 – point a
(a) it is likely that the product contributed to the damage; and
Amendment 394 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) in the case of a distributor or of an online platform, that it did not make the product available on the market;
Amendment 395 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
(c) that, having regard to the circumstances, it is probable that the defectiveness that caused the damage did not exist when the product was placed on the market, put into service nor originated from any update or supply under the control of the manufacturer, nor was due to their failure to provide an update as required by Union or national law or, in respect of a distributor, made available on the market, or that this defectiveness came into being after that moment;
Amendment 397 #
Proposal for a directive
Article 10 – paragraph 1 – point d
Article 10 – paragraph 1 – point d
(d) that the defectiveness is due to compliance of the product with mandatory regulations issued by public authoritiesrequirements issued by Union or national law, unless the manufacturer become aware of such a defect and failed to take corrective measures as required by Union and national law;
Amendment 402 #
Proposal for a directive
Article 10 – paragraph 1 – point e
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 the last update or supply under the control of the manufacturer, or in the period in which the product was within the manufacturer’s control was not such that the defectiveness could be discovered;
Amendment 414 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Member States shall ensure that where two or more economic operators are liable in the chain of commercial transaction for the same damage pursuant to this Directive, they can be held liable jointly and severally.
Amendment 417 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall ensure that the liability of an economic operator is not excluded or reduced when the damage is caused both by the defectiveness of a product and by an act or omission of a third party.
Amendment 418 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. TWithout prejudice to the compensation mechanisms provided under this Directive, the liability of an economic operator may be reduced or disallowed when the damage is caused both by the defectiveness of the product and by the fault of the injured person or any person for whom the injured person is responsible, including when the injured person does not install updates or upgrades provided by the economic operator, that would have mitigated the defect, where this can be reasonably expected from the owner of the product in terms of their technical capabilities and the knowledge required to be able to perform such update or upgrade.
Amendment 420 #
Proposal for a directive
Article 12 a (new)
Article 12 a (new)
Article12a Compensation mechanisms in case of shared or reduced liability Member States shall ensure that financial compensation is guaranteed to the claimant where two or more economic operators are jointly and severally liable pursuant to Article 11, and where the damage is caused both by a defective product and by an act or omission of a third party as referred to in Article 12. National rules on recourse and on calculating compensation shall ensure that, where appropriate, the economic operator held liable should have a right of recourse against the party which has brought about the defect, and that where compensation cannot be financed in full by the economic operator liable, the costs for compensation are shared proportionally between the parties liable.
Amendment 425 #
Proposal for a directive
Article 14 – paragraph 2
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 10 years from the date on which the actual defective product or the last update or supply under the control of the manufacturer which caused the damage was placed on the market, put into service or substantially modified as referred to in Article 7(4), or should have made available on the market in order to bring it to conformity with product safety requirements under Union or national law, 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 432 #
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 not been able to initiate proceedings within 10 years due to the latency of a personal injury or in case of hidden defects, the rights conferred upon the injured person pursuant to this Directive shall be extinguished upon the expiry of a limitation period of 1520 years.
Amendment 439 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. The Commission mayshall 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.