Is The EU Product Liability Directive Still Fit For Purpose?

Many things have changed since 1985, in particular in the world of technology. The Commission's 10 page report and evaluation of 7 May 2018 questions whether the Product Liability Directive of 1985 ("the Directive") is still fit for purpose. The Directive was implemented to protect consumer safety and imposes strict liability (i.e. no requirement for the injured party to prove fault) on a producer of defective products for personal injury or damage to property caused by the defect.

The Commission's Report

Although, historically, the Commission has reported on the implementation of the Directive to the Council and Parliament every 5 years, this is the first time that the report has been accompanied by an evaluation of the relevance of the Directive in the EU today, owing to widespread concerns regarding the invention and everyday use of "products" that were not even imagined back in 1985. The report recognises the urgent need to consider whether the Directive, in its current form, adequately deals with the challenges posed by "digitisation, the Internet of Things, artificial intelligence and cybersecurity" now and in the future, and, if it does not, what changes would be required to address the shortcomings.

In addition, as with previous reports, there is a section reporting on the number of complaints and infringements (none) that were commenced during 2011-2017 ("the reporting period"), pursuant to the Directive, together with an analysis of the Commission's own research into the number and types of claims brought throughout the EU. The Commission found that very few product liability claims have reached the Courts during the reporting period. The majority were settled by negotiation between the parties and without recourse to the Court. Cases involving pharmaceuticals accounted for 16.1% of all cases identified by the study.

The report also includes a brief commentary on the 4 product liability cases which have been brought before the Court of Justice of the European Union ("CJEU") during the reporting period. All 4 cases concern medical devices and pharmaceuticals, namely: Case C-495/10 Centre hospitalier universitaire de Besançon v Thomas Dutrueux and Caisse primaire d'assurance maladie du Jura, Case C-310/13 Novo Nordisk Pharma GmbH v S, Case C-621/15 N. W and Others v Sanofi Pasteur MSD SNC and Others, and joined cases C-503/13 and C-504/13 Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt - Die Gesundheitskasse and...