Evaluation and Consultation Announced

The European Commission has announced an ‘evaluation and fitness check’ of Directive 85/374/EEC which provides for the strict liability of producers under a consumer expectations test. This initiative will be the first formal examination of the Directive’s function and performance since its adoption in 1985 and is prompted in part by liability questions that arise from fast moving technological developments.

Details of the evaluation are contained in a consultation strategy document and an accompanying ‘roadmap’, the latest version of which is dated 12 September 2016. The Commission will examine whether the Directive still corresponds to stakeholder needs, is ‘fit for purpose’ and has ‘EU added value’. Particular focus is given to whether the Directive is coherent with other EU actions such as the Digital Single Market initiatives. Citing a variety of Commission documents such as the ‘GEAR 2030 Discussion Paper’ for highly automated vehicles, and ‘Advancing the Internet of Things in Europe’, references are made to questions about liability in complex situations where component functions overlap. Example issues include whether the unintended autonomous behaviour of an advanced robot could be considered a defect and how strict liability for damages should be allocated in the case of connected objects relying on each other. The concepts of ‘product’, ‘producer’, ‘defective’, ‘damage’ and various exemptions will be analysed to see if they are still fit for purpose. Wider themes will be examined such as whether the Directive strikes the right balance between the strict liability of the producer and the burden of proof placed on the consumer.

The evaluation is scheduled for the first half of 2017 and will deploy various approaches including an open public consultation, an online survey, and interviews with selected ‘stakeholders’ – a term widely defined to include public administrations, industry associations, producers, consumer organisations, insurers, think tanks and academia. The public consultation will be available on the EU’s ‘Your Voice in Europe’ site in due course.

Buried in the Eurospeak of the evaluation documents is a pragmatic proposal to check that this basic liability law can still function properly in the light of rapid changes to some of the products that it covers. In an open fashion the roadmap even asks to what extent strict liability might continue to need action at the European level, and what would be the consequences of reducing the scope of EU intervention. Both businesses and consumers who are required to deal with ‘smart’ tech complexities at the market level will welcome the opportunity to have their (digital) voices heard. Details of the evaluation are available here.