It's been a year since the European Commission published its Fifth Report on the application of the European Product Liability Directive (the "Directive") and set up expert panels to develop its thinking on next policy steps. What is the outcome of this past year? What should we expect next?
The work of the Expert Group
In its Report on the application of the Directive and its Communication "Artificial Intelligence for Europe", the European Commission presented its roadmap for 2018-2019. In order to adapt the Directive to the challenges of the new technologies and make its application more effective, the Commission relies on the work of its Expert Group which is composed of two formations.
The New Technologies Formation is tasked to analyse the challenges brought forward by the new technologies and assess if the existing legal rules on liability are adequate to these challenges. The meetings of the New Technologies Formation have taken place every month since September 2018. The experts discussed disruptive features and challenges of the new technologies and drafted some papers on various topics (e.g., autonomous cars, smart homes, blockchain, autonomous healthcare applications, algorithmic decision making in the financial market, cybersecurity, autonomous drones), but also on key concepts of the strict liability regime (e.g., causation, right of redress, damage, damages, insurance).
These contributions will feed into a final report which has been discussed by the experts during the last meetings in March and April and which is expected by mid-2019.
The Product Liability Formation is tasked to provide expertise and assistance to the Commission in drawing up guidance on the Directive, but also to contribute to the report on the broader implications for, potential gaps in and orientations for the liability and safety frameworks for artificial intelligence (AI), the Internet of Things (IoT) and robotics. Over the past year, the experts of the Product Liability Formation met four times.
The Commission has drafted two documents in the light of the discussions held at the meetings of the Product Liability Formation:
- Preliminary Concept Paper for the Future Guidance on the Product Liability Directive 85/374/EEC. The Commission has submitted to the experts several versions of the paper, which has been amended on the basis of the experts' contributions. It is structured around key concepts, e.g., product, producer, defect, damage, causation, defences.
- Expert's views on matters not covered by the future Guidance on the Product Liability Directive 85/374/EEC. This document provides "a summary of issues on which experts could not reach a consensus".
These working documents do not represent an official Commission position. They are intended to fuel the discussion with the experts.
Over the past year, the Hogan Lovells Global Products Law team monitored expert panels, engaged with stakeholders and contributed to the discussions by providing views arisen from the practical experience of a global network of product lawyers.
Now that the European elections are behind us, we can expect further movement in the coming months, and notably:
- The New Technologies Formation is expected to deliver its report by mid-2019.
- The Commission is expected to issue a final Guidance document by mid-2019. No precise timing has been given for the issuance of the Guidance document and "the final form […] has not yet been determined".
- The Commission is expected to publish a Report on the broader implications for the liability and safety frameworks for AI, IoT and robotics by mid-2019.
- The Commission is expected to publish the Expert's views on matters not covered by the Guidance in the coming months.
- The next meeting of the Product Liability Formation "will most likely take place in late 2019 after the publication of the guidance".