Presumed Product Defect – the New Dimensions of the European Product Liability Reform

Abstract

The question of whether the Product Liability Directive (PLD) can fulfil its original purpose and function effectively today has been raised several times. In 1985, the community legislator introduced and popularised a set of rules that created the objective liability of the producer. Since the PLD was adopted, the technological environment has changed radically. Moreover, the small number of product liability cases before the courts (at both the EU and national levels) suggests that the instrument has not achieved, or has not fully achieved, the breakthrough for which it was designed. In response, the Commission of the European Union adopted an important package of proposals in September 2022. A reformed Draft of the Product Liability Directive (hereinafter: Draft, Draft Directive), as well as a Draft directive to harmonise artificial intelligence with tort (non-contractual) liability, the so-called AI Liability Directive, was adopted. After an introductory summary of the PLD’s current concepts, this study analyses the product liability regime from a sustainability perspective, by contrasting the shortcomings of the current regulatory framework with the novelties of the draft package, particularly in terms of the burden of proof and producer exemption.