As of: February 20, 2024, 4:59 a.m
By: Lisa Mayerhofer
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With the new EU directive, software, for example in vacuum cleaner robots, should also fall within the scope of product liability (symbolic photo).
© Alena Kuznetsova/Imago
The EU wants – after decades – to reform the EU Product Liability Directive.
It will then soon be easier for consumers to be compensated for damages.
Companies are less enthusiastic.
Berlin - The European Union is planning a revolutionary innovation - there is a reformed version of the EU Product Liability Directive.
People in Germany will probably soon be able to more easily compensate for damage caused by defective products.
Among other things, the plan is to make it easier for consumers to provide evidence so that they can more easily assert their claims in court.
New EU directive: liability also for software
Probably the biggest change: “For the first time, software will also fall within the scope of product liability, both on its own and as part of another product,” explains Rupert Bellinghausen, Partner Litigation, Arbitration and Investigations at the law firm Linklaters, to
Handelsblatt
.
“This means that software manufacturers can now also be called upon, whether it is about sub-components or an overall solution, it doesn’t matter.” There can also be several actors who played a role in the production and sale of the product will be held liable for a defective product.
In order to go to court in the event of a dispute, a contractual relationship between the software manufacturer and the claimant is not even necessary.
“Liability cannot be limited to the user through contractual agreements,” Bellinghausen continued to tell the newspaper.
However, open source software that is developed or provided outside of a commercial activity is exempt from these regulations.
The current product liability guidelines date back to 1985
The step is long overdue: Nowadays, software can be found in many, usually more expensive, things that people use in their everyday lives.
This not only includes the apps on the smartphone, software is also in cars, vacuum cleaner robots and washing machines.
Until now, those affected have not been able to do much if the software caused damage, such as deleting important data.
The current product liability directive dates back to 1985. “Back then there wasn’t much to be seen of digitalization.
“There was therefore an urgent need to adapt to the digital age,” explains legal expert Meret Sophie Noll from the
Federal Association of Consumer Organizations in the
taz
.
Facilitation of evidence for consumers planned
Even now, consumers have to prove that a defect in the product caused the damage, but at least there are now easier ways to provide evidence.
These apply if the case is technically very complex and it is difficult for the person concerned to prove that the defect was due to the product.
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According to consumer advocates, networked products such as smartphones or smart home systems, for example, are among the cases where it would be possible to make it easier to provide evidence, Noll told the
taz
.
The assumption then applies that “there was an error and that caused the damage.
In such cases, the manufacturer actually has to prove that this was not the case,” said the consumer advocate.
The additional regulation that one actor must always be liable and “the manufacturers must take recourse among themselves if necessary” plays into the hands of those affected.
As a consumer, you are not exposed to the risk of everyone being held liable,” explains Noll.
New guidelines could come into force soon
Naturally, companies are less enthusiastic about the new EU directive.
If a manufacturer has to prove in a complex case that their product had no defects, they must comply with an extensive disclosure obligation, which could also affect trade secrets, warns Linklaters.
“In a market in which products are becoming increasingly complex, particularly through the use of software and new technologies, and causal relationships cannot sometimes be clarified even with the involvement of experts, this leads to a complete reversal of risk distribution,” criticizes Bellinghausen in the
Handelsblatt
.
It probably won't be long before implementation takes place.
If the directive comes into force, national legislators will have two years to implement it.
However, consumer advocate Noll assumes in the
taz
“that the federal government will do that in this legislative period”.