Liability for defective products - BusinessEurope's reply to the public consultation

Key messages

• The 'product liability' directive (85/374/EEC) establishes a common standard of responsibility in the area of product liability. The directive strikes a good balance between consumer and producer rights.
• The current regulatory framework is generally fit to address liability issues concerning new technological developments, such as the Internet of Things, smart devices and the cloud. Directive 85/374/EEC provides broad principles that are flexible enough to cover these areas.
• Application of the directive to technologies that operate more as a service than as products, such as the online use of software, should be addressable under the existing legal framework.
• Adapted or dedicated liability rules might only be appropriate for completely autonomous automated systems such as, for example, self-driving cars. We suggest an in-depth analysis of the existing rules to specific cases of autonomous systems to determine if additional regulation or tools are required to address liability challenges.
• In the communication ‘Building a European Data Economy’, the Commission identifies two possible ways forward for liability in relation to emerging technologies: risk-management approaches and insurance schemes.
  • Assigning liability to market players "best placed to avoid the realisation of risk" raises many questions and concerns. It is unclear who could impose such liability and which criteria would be used for this assignment. This should be left to contractual arrangements between parties in order to guarantee enough flexibility and adaption to each particular case.
  • Although a discussion on insurance schemes would be useful, imposing insurance schemes could also produce unexpected effects on businesses as it may imply that data economy services are particularly risky. It should be left to businesses to decide if and how they want to contract insurance schemes.