The new European directive on product liability: a disruption of the legal framework
After several years of work, Directive (EU) 2024/2853 of October 23, 2024, was adopted to fundamentally modernize the product liability regime. Published in the Official Journal of the European Union (OJ EU) on November 18, 2024, it repeals Directive 85/374/EEC, which has been in force since 1985, and must be transposed into national legislation by December 9, 2026.
This directive aims to strengthen consumer protection while taking into account technological and economic changes. It notably introduces an extension of the scope of liability, relaxation of rules of evidence, and adaptation to new digital and industrial realities.
Cette directive vise à renforcer la protection des consommateurs tout en prenant en compte les mutations technologiques et économiques. Elle introduit notamment une extension du champ d’application de la responsabilité, un assouplissement des règles de preuve et une adaptation aux nouvelles réalités numériques et industrielles.
An extension of the scope of liability
One of the major advances of the directive is the broadening of the definition of products and responsible parties:
- Inclusion of digital products and software: Unlike the previous directive, which was limited to tangible goods, the new regulation now includes digital manufacturing files and software, including those integrated into medical devices or interconnected with other products. This evolution corresponds to the rise of connected objects and artificial intelligence, whose malfunctions can have serious consequences.
- Liability of online platforms: Digital marketplaces can now be held responsible when they play an active role in the commercialization of defective products, such as controlling their presentation or logistics.
- Consideration of substantial modifications: When a product is repaired, refurbished, or updated outside the control of the original manufacturer, the company that made these modifications can be held liable if the product is defective.
- Engagement of importers and representatives: In the context of globalization, the directive now requires that companies placing products on the European market be identifiable and responsible, even when the manufacturer is based outside the European Union.
Strengthening consumer rights
Directive 2024/2853 was designed to facilitate compensation for harmed consumers and remove certain procedural obstacles:
- Easing the burden of proof: Until now, harmed consumers had to prove the defectiveness of the product, the damage suffered, and the causal link between the two. The new directive lightens this burden by establishing a presumption of defectiveness or a causal link when there are excessive difficulties in demonstrating these elements, especially for complex products such as medicines, medical devices, or artificial intelligence systems.
- Forced disclosure of evidence: Inspired by the American « discovery » system, the directive allows judges to order the manufacturer or responsible party to disclose relevant documents, especially in cases of technological opacity.
- Recognition of psychological harm: From now on, harmed consumers can be compensated for medically recognized psychological health impairments, such as anxiety damage caused by exposure to a dangerous product.
- Compensation for loss of personal data: A notable advance is the consideration of intangible losses. The directive provides that the destruction or corruption of personal data stored on a defective device (e.g., photos lost on a smartphone due to a technical defect) may entitle the consumer to compensation.
- Extension of prescription periods: The limitation period for bringing an action is extended from 10 years to 25 years for latent bodily injuries to better protect consumers who suffer from slowly developing diseases caused by certain products, especially pharmaceuticals.
Transposition into French Law
The transposition of this directive into French law raises several complex issues. In particular, it must be reconciled with the current civil liability regime provided for in Articles 1245 and following of the French Civil Code, which has historically been based on a logic of full compensation for harmed consumers.
Furthermore, the new rules regarding the burden of proof and the extension of the scope of responsible parties mark a clear shift in paradigm, which will require procedural and regulatory adjustments. Ensuring effective harmonization will be essential to avoid conflicts between national rules and the new European framework.
De plus, les nouvelles règles relatives à la charge de la preuve et à l’élargissement du champ des responsables marquent un net changement de paradigme qui nécessitera des ajustements procéduraux et réglementaires. Il sera essentiel d’assurer une harmonisation efficace afin d’éviter des conflits entre les règles nationales et le nouveau cadre européen.
