Activities of Vlad-Marius BOTOŞ related to 2022/0302(COD)
Plenary speeches (1)
Liability for defective products (short presentation)
Reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on liability for defective products
Amendments (19)
Amendment 72 #
Proposal for a directive
Recital 9
Recital 9
(9) Under the legal systems of Member States an injured person may have a claim for damages on the basis of contractual liability or on grounds of non-contractual liability that do not concern the defectiveness of a product, for example liability based on warranty or on fault. This includes the provisions of the [AI Liability Directive …/… of the European Parliament and of the Council], which lays down common rules on the disclosure of information and the burden of proof in the context of fault-based claims for damages caused by an AI system. Such provisions, which also serve to attain inter alia the objective of effective protection of consumers, should remain unaffected by this Directive.
Amendment 74 #
Proposal for a directive
Recital 10
Recital 10
(10) In certain Member States, injured persons may be entitled to make claims for damages caused by pharmaceutical products under a special national liability system, with the result that effective protection of consumers in the pharmaceutical sector is already attained. The right to make such claims should remain unaffected by in those Member States. When it comes to harm suffered due to pharmaceuticals that are not defective, all Member States cover basic losses through national health systems or social security schemes. To cover further losses, some Member States have created special insurance schemes for pharmaceuticals, under which victims of harm may get compensation if the non- defective pharmaceutical product nonetheless caused a harm, without any need to prove fault or defectiveness. The right to make such claims should remain unaffected by this Directive. Changes made to these special national liability systems, health systems and social security schemes as well as the possible introduction of insurance schemes should not be precluded, as long as they do not undermine the effectiveness of the liability systems provided for in this Directive.
Amendment 78 #
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. In the interest of legal certainty it should therefore be clarified that software is, when necessary for a tangible product to operate or when it presents a safety relevance, is considered a product for the purposes of applying no- fault liability, irrespective of the mode of its supply or usage, and therefore irrespective of whether the software is stored on a device or accessed through cloud technologies. Software should be considered necessary for a tangible product to operate, when the software’s absence would prevent the product from performing its functions. A software, which presents a safety relevance, includes for example a medical device software that would notify a medical doctor of a patient’s heart attack. 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, should be treated as a manufacturer. However, where a meaning of [Regulation (EU) …/… (AI Act)],ufacturer decides to use free and open-source software in a product placed on the market or intended to be placed on the market, the developer of that software should not be treated as a manufacturer.
Amendment 84 #
(13) In order not to hamper innovation or research, this Directive should not apply to free and open-source software developed or supplied outside the course of a commercial activity. This is in particular the case for software, including its source code and modified versions, that is openly shared and freely accessible, usable, modifiable and redistributable. However where software is supplied in exchange for a price or personal data is used other than exclusively for improving the security, compatibility or interoperability of the software, and is therefore supplied in the course of a commercial activity, the Directive should apply.
Amendment 99 #
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 114 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) Taking account of the increased complexity of the products, of the businesses models and the supply chains, and considering that the aim of this directive is to ensure that consumers can easily exercise their right to get compensation in case of damage caused by defective products, Member States should ensure that competent national consumer protection authorities and bodies provide to affected consumers with all relevant information and tailored guidance to be able to effectively exercise their rights to compensation, in accordance with the provisions set out in this Directive. National consumer protection agencies and bodies should regularly exchange relevant information they became aware of and closely cooperate with the market surveillance authorities.
Amendment 128 #
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 […/…] 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 prcomptly identify a relevant economic operator based in the Unionwith the obligations referred to in article 22 (9) of the Regulation (EU) [..../....] on General Product Safety.
Amendment 151 #
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, given that manufacturers have expert knowledge and are better informed than the injured person, it should be for them to rebut the presumption. Technical or scientific complexity should be determined by national courts on a case- by-case basis, taking into account various factors. Those factors should include the complex nature of the product, such as an innovative medical device; the complex nature of the technology used, such as machine learning; the complex nature of the information and data to be analysed by the claimant; and the complex nature of the causal link, such as a link between a pharmaceutical or food product and the onset of a health condition, or a link that, in order to be proven, would require the claimant to explain the inner workings of an AI system. The assessment of excessive difficulties should also be made by national courts on a case-by-case basis. While a claimant should provide arguments to demonstrate excessive difficulties, proof of such difficulties should not be required. For example, in a claim concerning an AI system, the claimant should, for the court to decide that excessive difficulties exist, neither be required to explain the AI system’s specific characteristics nor how these characteristics make it harder to establish the causal link. The defendant should have the possibility to contest the existence of excessive difficulties by demonstrating that the claimant has sufficient evidence to prove the defectiveness of the product or the causal link between its defectiveness and the damage, or both. In such a case, the defectiveness of the product or causal link between its defectiveness and the damage, or both shall not be presumed.
Amendment 184 #
Proposal for a directive
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
1a. This Directive shall not apply to free and open-source software.
Amendment 189 #
Proposal for a directive
Article 2 – paragraph 3 – point b
Article 2 – paragraph 3 – point b
Amendment 211 #
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 functions when it is necessary for a tangible product to operate or when it presents a safety relevance;
Amendment 267 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article5a Guidance Member States shall ensure that the competent national consumer protection authorities provide information and tailored guidance to consumers in order to effectively exercise their right to compensation in accordance with Article 5 of this Directive. National consumer protection agencies and bodies shall regularly exchange relevant information they became aware of and closely cooperate with the market surveillance authorities.
Amendment 289 #
Proposal for a directive
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) mandatory product safety requirements, including safety-relevant cybersecurity requirements laid down in Union law or national law that are intended to protect against the risk of the damage that has occurred;
Amendment 310 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall ensure that, where the manufacturer of the defective product is established outside the Union, the importer of the defective product and , where applicable, the authorised representative of the manufacturer can be held liable for damage caused by that product.
Amendment 332 #
Proposal for a directive
Article 7 – paragraph 6
Article 7 – paragraph 6
6. Paragraph 5 shall also apply toMember States shall ensure that where a manufacturer under paragraph 1 cannot be identified, or where the manufacturer is established outside the Union, or where an economic operator under paragraphs 2 or 3 cannot be identified, any provider of an online platform that allows consumers to conclude distance contracts with traders cand tha be held liable where: (a) it is not a manufacturer, importer or distributor , provided that; (b) it has failed to comply with Article 22(9) of Regulation (EU) [.../...] of the European Parliament and of the Council on General Product Safety; and (c) the conditions of Article 6(3) set out in Regulation (EU)…/… 2022/2065 of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act)55 are 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.
Amendment 365 #
Proposal for a directive
Article 9 – paragraph 2 – point b
Article 9 – paragraph 2 – point b
(b) the claimant establishes that the product does not comply with mandatory product safety requirements laid down in Union law or national law that are intended to protect against the risk of the damage that has occurred; or
Amendment 386 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1 – point b
Article 9 – paragraph 4 – subparagraph 1 – point b
(b) it is likely that the product was defective or that its defectiveness is a likely cause of the damage, or both by demonstrating that the claimant has sufficient evidence to prove the defectiveness of the product or the causal link between its defectiveness and the damage, or both. In such a case, the defectiveness of the product or causal link between its defectiveness and the damage, or both shall not be presumed.
Amendment 413 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Without prejudice to national law concerning the right of contribution or recourse, Member States shall ensure that where two or more economic operators are liable for the same damage pursuant to this Directive, they can be held liable jointly and severally.
Amendment 416 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Without prejudice to national law concerning the right of contribution or recourse, Member States shall ensure that the liability of an economic operator is not reduced when the damage is caused both by the defectiveness of a product and by an act or omission of a third party.