The European Commission has proposed a possible change of the Directive on product liability. The change implies an update of the important definitions concerning “manufacturer”, “product”, “defect”, “injury” and “burden of proof”. At the same time, the European Commission is planning to make a direction to the Directive.

A company is liable if the company’s defective product causes physical damage to something other than the defective product itself. In Denmark, product liability is governed by two different systems: The Product Liability Act and the product liability rules developed under case law.

The Product Liability Act is based on the EU Directive 85/374/EC of 25 July 1985, which the European Commission has evaluated and made a report about dated 7 May 2018. The reason for the evaluation is, among others, the most recent technological development.

According to the European Commission, the evaluation shows that it is necessary to specify the understanding of the important definitions in the Directive. Also certain products, for instance medicinal products, have given rise to challenges in relation to the application of the Directive.

The European Commission is therefore going to make a direction as to how the Directive should be applied today, and it will also assess to which extent new digital technologies are addressed sufficiently under the present Directive.

Further, the European Commission will consider whether it is necessary to change the governing of product liability, for instance by updating the understanding of the definitions concerning “manufacturer”, “product”, “defect”, “injury” and “burden of proof”. There are, however, no prospects of a change of the fundamental principle on strict liability.

THE EUROPEAN COMMISSION SETS UP AN EXPERT GROUP

The European Commission has set up an expert group to assist with the interpretation, application and updating of the directive and the direction. The group’s first meeting concerning governing of product liability was held on 8 June 2018, and the next meeting will be held on 18 September 2018. According to the European Commission, a number of reports will be published subsequently, and the direction will be published mid-2019.

Consequently, Danish companies and not least the insurance companies are not to expect any changes in the rules in the future. Horten will follow the development of the European Commission’s work closely.

contacts

Jacob Møller Dirksen

Partner

Daniel Haue Jakobsson

Attorney

Sebastian Lundsgaard

Assistant Attorney