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This draft compromise text was discussed during the meeting of the Working Party on Civil Law Matters (Civil Liability) on 17 March 2023.
The main changes proposed by the draft compromise text to the Commission’s original proposal can be summarised as follows:
General Provisions and definitions
The Presidency modified the article on the scope of the proposal, specifying that the Directive shall apply 24 months instead of 12 after its entry into force (article 2).
In the same article, paragraph (b) was deleted. Paragraph (b) concerns a reference to national rules concerning the right of contribution or recourse between two or more economic operators that are jointly and severally liable pursuant to Articles 11 or 12 of this proposal.
On Article 4, the definitions were alterated including:
- “digital manufacturing file” should contain the functional information necessary to produce a tangible item by enabling the automated control of machinery or tools.
- “component”: the reference to end-product’s manufacturer control is deleted.
- “related service”: excludes electronic communication services as defined by the Electronic Communication code directive.
- “manufacturer’s control” includes the ability to perform or to authorise a third-party the supply of software update or upgrade.
Conditions to compensation
A new article 5a on damage is included. The article specifies the conditions under which the right to compensation under Article 5 shall apply.
It is mentioned that Article 5 shall apply only to the following types of damage:
- loss or corruption of data that is not exclusively used for professional purposes;
- death and personal injury;
- damage to, or destruction of, any property, except the defective product itself;
- a product damaged by a defective component of that product;
- and property used exclusively for professional purposes.
Finally, it is noted that Article 5a will not affect national law relating to the compensation of non-material damage.
Defectiveness
Article 6 on defectiveness and the circumstances around which a product can be considered defective, is slightly amended to include (paragraph (i)) that a product can be considered defective if it became defective due to its failure to fulfill its purpose of preventing damage.
Economic operators liable for defective products
Article 7 on economic operators liable for defective products, deletes paragraphs 1-3 and inserts a new list to clarify which economic operators can be identified as liable for damages covered by the new article 5a.
- the manufacturer of the defective product
- the manufacturer of a defective component that compromised the end-product
- if established outside the EU without prejudice to its own liability:
- the importer
- the authorised representative
- Otherwise, the fulfillment service provider.
Disclosure of evidence
Article 8 is slightly modify and includes some clarifications around how disclosure of evidence can take place.
Burden of proof
Article 9, paragraphs 3 and 4 are heavily amended. The conditions to consider the “excessive difficulties to prove defectiveness and casual link” are alleviated. In this case the claimant shall be required only to prove that:
- the product contributed to the damage; and
- it is likely that the product was defective or that its defectiveness is a likely cause of the damage, or both.
Long-stop period (new)
A new article 14a on the long-stop period is inserted. The article clarifies the conditions that have to apply for an injured person to longer be entitled to compensation. While in general, an injured person will no longer be entitled to compensation after a 10 years limitation period.
It is specified that in case of substantially modified products, the limitation period shall run shall run from the placing of the market or the commissioning of this modification.
Finally, a reference is included that states that a claimant will be entitled to compensation even after 10 years, if he has initiated proceedings against an economic operator pursuant to Article 7.
Final provisions
Article 15 on transparency is amended to include courts of appeal or of the highest instance. Articles 17 on repeal and transitional provision and 18 on transposition are amended to reflect the new time period of 24 months as specified in Article 2.
Next steps
European Parliament
The Committees on Legal Affairs (JURI) and on Internal Market and Consumer Protection (IMCO) have been designated to work jointly on the file, in accordance with Rule 58 ("Joint Committee") of the European Parliament's Rules of procedures.
The Committees will consider the first draft report on 26 April, with a deadline for amendments to that Report scheduled for 28 April at noon.
Amendments and compromise amendments will then be considered on 28-29 June in advance of a Committee vote on the measure either on 3 or 6 July 2023.
Co-Rapporteurs:
- Pascal Arimont (JURI) (EPP, Belgium)
- Vlad-Marius Botos (IMCO) (Renew Europe, Romania)
Council of EU
The Working Party on Civil Law Matters is expected to meet on 19 April to exchange views on the Presidency compromise proposal. Council experts are also expected to further meet over the coming weeks to continue examining the file, in order to prepare the Council’s internal position (General Approach).
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