Directive 85/374/EEC – the “Product Liability Directive” came into force on 30 July 1985. It established the principle of liability without fault applicable to European producers. Where a defective product causes damage to a consumer, the producer may be liable even without negligence on their part. An injured person carries the burden of proving damage, a defect in the product and a causal link between the damage and the defect. They do not, however, have to prove the negligence or fault of the producer.
Since the Directive’s implementation, almost 33 years ago, the European Commission has published 5 performance reports; the most recent being published on 7 May 2018. This is the first report to be accompanied by an evaluation of the continued relevance of the Directive. This evaluation was undertaken after growing concerns that the Directive has become outdated as technology has developed in a way unimagined back in 1985.
As a result, and somewhat unsurprisingly, the latest report recognises that there is a need to consider whether the Directive in its current form is sufficient to deal with issues posed by modern technology, including “digitisation, the Internet of Things, artificial intelligence and cybersecurity”.
So, is the Directive still relevant? Despite these technological advances, the answer appears to be yes. The European Commission has concluded that the Directive continues to be adequate and fit for purpose. However, it does intend to publish comprehensive interpretative guidance in mid-2019 to clarify the extent to which the Directive applies to emerging technologies, and potentially suggest updated definitions of key terms, while safeguarding the principle of strict liability, so as to ensure legal certainty for consumers and producers.
In reaching its conclusion the Commission examined the analysis of the number and types of claims brought throughout the EU between 2000 and 2016. The evaluation shows that 46% of cases were settled out of court and 15% settled through alternative dispute resolution. Only 32% of cases were resolved in court. (The remaining 7% were resolved through other means such as the insurer of the responsible party).
The report also reveals that consumers have been largely effective in getting compensation through litigation. Of the cases that reached court, around 60% of the claims for defective products were successful between the years 2000 and 2016.
The evaluation was critical of the cost and length of court cases pursued in some Member States, most notably in cases involving pharmaceuticals. However, it found that the Directive does provide a “stable legal framework” so as to ensure consumer protection.
As a result the Commission is, for the time being, happy to maintain the status quo. The Commission is, however, now taking steps to ensure that the Directive will continue to be relevant in the future.
As with all current European matters, how UK law develops in the future will very much be governed by the eventual outcome of Brexit, though given the UK’s need for continued trade with the EU it seems likely that the UK will implement any changes to provisions made by the EU in respect of the Product Liability Directive.