51 Amendments of Adriana MALDONADO LÓPEZ related to 2022/0302(COD)
Amendment 66 #
Proposal for a directive
Recital 6
Recital 6
(6) In order to ensure the Union’s product liability regime is comprehensive, no-fault liability for defective products should apply to all movables, including stand alone software and any kind of software irrespective of the mode of supply. It should apply to movables including when they are integrated into other movables or installed in immovables.
Amendment 92 #
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. While this Directive should not apply to services as such, it is necessary to extend no-fault liability to such digital services as tdigital elements. They determine the safety of the product just as much as physical or digital components. Such related servicedigital elements 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 100 #
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. Especially as the World Health Organisation defines ‘health’ as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.
Amendment 113 #
Proposal for a directive
Recital 21
Recital 21
(21) This Directive should not affect the various means of seeking redress at national level, whether through court proceedings, non-court solutions, alternative dispute resolution or representative actions under Directive (EU) 2020/182845of the European Parliament and of the Council or under national collective redress schemes. This Directive should also cover such instances in Member States where damages of injured parties are transferred to the carrier of an insurance by way of legal assignment, considering that there are benefits due to the insurance relationship. Insurance institutions as legal persons should therefore also have the right to assert claims for damages. _________________ 45 Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, p. 1).
Amendment 119 #
Proposal for a directive
Recital 24
Recital 24
(24) In order to reflect the relevance of product safety and market surveillance legislation for determining the level of safety that the public at large is entitled to expect, it should be clarified that safety requirements, including safety requirements laid down in Union and National law or safety-relevant cybersecurity requirements, and interventions by regulatory authorities, such as issuing product recalls, or by economic operators themselves, should also be taken into account in that assessment. SuchVoluntary interventions should, however, not of themselves create a presumption of defectiveness.
Amendment 127 #
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 suchas 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 platfdo present the product or otherwise enable the specific transaction, it should be possible to hold them liable, in the same way as other economic operators under this Directive. In cases when due to circumstances such as the absence orm 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 Unionnsolvency of an economic operator, the claimant is unable to obtain compensation, the relevant subsequent economic operators should be liable including online marketplaces.
Amendment 135 #
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 undermine the fair apportionment of risk, in particular in cases involving technical or scientific complexity.
Amendment 144 #
Proposal for a directive
Recital 33
Recital 33
Amendment 149 #
Proposal for a directive
Recital 34
Recital 34
Amendment 153 #
Proposal for a directive
Recital 35
Recital 35
Amendment 157 #
Proposal for a directive
Recital 37
Recital 37
(37) The moment of placing on the market or putting into service is normally the moment at which a product leaves the control of the manufacturer, while for distributors it is the moment when they make the product available on the market. Therefore manufacturers should be exempted from liability where they prove that it is probable that the defectiveness that caused the damage did not exist when they placed the product on the market or put it into service or that it came into being after that moment. However, since digital technologies allow manufacturers to exercise control beyond the moment of placing the product on the market or putting into service, manufacturers should remain liable for defectiveness that comes into being after that moment as a result of software or related servicedigital elements within their control, be it in the form of upgrades or updates or machine-learning algorithms. Such software or related servicedigital elements should be considered within the manufacturer’s control where they are supplied by that manufacturer or where that manufacturer authorises them or otherwise influences their supply by a third party.
Amendment 161 #
Proposal for a directive
Recital 39
Recital 39
Amendment 166 #
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 omissionsor disallowed as a consequence of events attributable to a third party. 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.
Amendment 170 #
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. In addition, liability rules should take the expected lifespan of a product into account in order to reduce premature disposal of viable goods purchased by consumers and to encourage consumers to use their goods longer. Therefore, the liability should be subject to a reasonable length of time, that is 130 years or the expected lifespan of a product, whichever is longer 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 1530 years in cases where the symptoms of a personal injury are, according to medical evidence, slow to emerge.
Amendment 176 #
Proposal for a directive
Article 1 – title
Article 1 – title
Amendment 177 #
Proposal for a directive
Article 1 – paragraph -1 (new)
Article 1 – paragraph -1 (new)
-1 The objective of this Directive is to ensure a high level of consumer protection, as well as improving the functioning of the internal market.
Amendment 208 #
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, or any related servicedigital element, that is integrated into, or inter-connected with, a product by the manufacturer of that product or within that manufacturer’s control;
Amendment 212 #
Proposal for a directive
Article 4 – paragraph 1 – point 4
Article 4 – paragraph 1 – point 4
(4) ‘related servicedigital element’ means a digital service or digital content, as defined in Articles 2 (1) and (2) of Directive (EU) 2019/770 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;
Amendment 222 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – introductory part
Article 4 – paragraph 1 – point 6 – introductory part
(6) ‘damage’ means material losses resulting from:
Amendment 228 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point b – point ii
Article 4 – paragraph 1 – point 6 – point b – point ii
Amendment 232 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point c
Article 4 – paragraph 1 – point 6 – point c
(c) loss, theft or corruption of data, including leakage of data, that is not used exclusively for professional purposes;
Amendment 233 #
Proposal for a directive
Article 4 – paragraph 1 – point 6 – point c a (new)
Article 4 – paragraph 1 – point 6 – point c a (new)
(ca) This definition shall be without prejudice to national provisions relating to non-material damage.
Amendment 252 #
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 servicedigital element, the authorised representative, the importer, the fulfilment service provider or the distributor;
Amendment 270 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. A product shall be considered defective when it is not in compliance with Union or National product safety law or does not provide the safety which the public at large is entitled to expect, taking all circumstances into account, including in particular the following:
Amendment 273 #
(a) the presentation of the product, including the labelling, its instructions for installation, use and maintenance;
Amendment 290 #
Proposal for a directive
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) product safety requirements, under Union and National law, including safety- relevant cybersecurity requirements;
Amendment 296 #
Proposal for a directive
Article 6 – paragraph 1 – point h
Article 6 – paragraph 1 – point h
(h) the specific group of end-users, including vulnerable end-users and the expectations of the end- users for whom the product is intended.
Amendment 299 #
Proposal for a directive
Article 6 – paragraph 1 – point h a (new)
Article 6 – paragraph 1 – point h a (new)
(ha) justified concerns which for instance are presented by a consumer organisation that products from the same product series are defective.
Amendment 309 #
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, or where it is unable to provide compensation due to absence or insolvency, the importer of the defective product and the authorised representative of the manufacturer can be held liable for damage caused by that product.
Amendment 316 #
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, or where the manufacturer and the economic operators referred to in paragraphs 2 are unable to provide compensation due to absence or insolvency, the fulfilment service provider can be held liable for damage caused by the defective product.
Amendment 320 #
Proposal for a directive
Article 7 – paragraph 3 a (new)
Article 7 – paragraph 3 a (new)
3a. 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 paragraphs 2 and 3 can be identified or are not established in the Union, or where the manufacturer and the economic operators referred to in paragraphs 2 and 3 are unable to provide compensation due to absence or insolvency, any provider of an online platform that allows consumers to conclude distance contracts with traders and that is not a manufacturer, importer, authorised representative or fulfilment service provider, can be held liable for damage caused by a product.
Amendment 330 #
Proposal for a directive
Article 7 – paragraph 6
Article 7 – paragraph 6
Amendment 341 #
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 or considering claiming compensation for damage caused by a defective product (‘the claimant’) who has presented facts and evidence sufficientreasonably available facts to support the plausibility of the claim for compensation, to order the defendant to disclose relevant evidence that is at its disposal including before the commencement of proceedings on the merits of the case.
Amendment 348 #
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. Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the action for liability.
Amendment 351 #
Proposal for a directive
Article 8 – paragraph 4 a (new)
Article 8 – paragraph 4 a (new)
4a. Member States shall ensure that, where a defendant is ordered to disclose information, the information is presented to the claimant in an easily accessible and easily understandable manner.
Amendment 353 #
Proposal for a directive
Article 8 – paragraph 4 b (new)
Article 8 – paragraph 4 b (new)
4b. This Article shall not prevent Member States from maintaining or introducing rules that are more favourable to claimants.
Amendment 354 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that a claimant is required to prove the damage suffered. Member States shall ensure that, when a claimant establishes before a national court facts from which the defectiveness of the product, the damage suffered and/or the causal link between the defectiveness and the damage, or both, may be presumed, it shall be for the defendant to prove the lack of defectiveness or the lack of causal link, or both.
Amendment 359 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
Amendment 373 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
Amendment 378 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1
Article 9 – paragraph 4 – subparagraph 1
Amendment 390 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 2
Article 9 – paragraph 4 – subparagraph 2
Amendment 399 #
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 authorities and that the economic operator exercised all reasonable due care required by the circumstances;
Amendment 401 #
Proposal for a directive
Article 10 – paragraph 1 – point e
Article 10 – paragraph 1 – point e
Amendment 405 #
Proposal for a directive
Article 10 – paragraph 2 – introductory part
Article 10 – paragraph 2 – introductory part
2. By way of derogation from paragraph 1, point (c), an economic operator shall not be exempted from liability, where the defectiveness of the product is due to including but not limited to any of the following, provided that it is within the manufacturer’s control:
Amendment 408 #
Proposal for a directive
Article 10 – paragraph 2 – point a
Article 10 – paragraph 2 – point a
(a) a related servicedigital element;
Amendment 409 #
Proposal for a directive
Article 10 – paragraph 2 – point c a (new)
Article 10 – paragraph 2 – point c a (new)
(ca) evolving, learning and predictive functionalities of products or components.
Amendment 415 #
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 reduced or disallowed when the damage is caused both by the defectiveness of a product and by an event outside the control of the economic operator, such as one attributable to an act or omission of a third party.
Amendment 419 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. 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.
Amendment 427 #
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 ofshall be applicable during the expected lifespan of a product or for a limitation period of 130 years from the date on which the actual defective product which caused the damage was placed on the market, put into service or substantially modified as referred to in Article 7(4), whichever is longer unless a claimant has, in the meantime, initiated proceedings before a national court against an economic operator that can be held liable pursuant to Article 7.
Amendment 431 #
Proposal for a directive
Article 14 – paragraph 3
Article 14 – paragraph 3
Amendment 438 #
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. In addition to paragraph 1, this database shall contain judgments delivered by the Court of Justice of the European Union related to proceedings launched pursuant to this Directive.