Reform of product liability for defective products: what is at stake?

In a world where technological innovation and digitalisation are profoundly reshaping our daily lives, the need to adapt the rules on product liability for defective products has become pressing. On 23 October 2024, the European Union therefore adopted Directive 2024/2853, marking an overhaul of the principles established by Directive 85/374/EEC, which had been in force for nearly forty years.

This reform, which will take effect on 9 December 2026, aims to strengthen consumer protection and to provide greater legal certainty to manufacturers and distributors in a rapidly evolving economy, marked by the rise of artificial intelligence and connected devices.

So what are the concrete impacts of this reform on the liability of market players? What new challenges and risks will they have to face? This question opens up a reflection on the issues surrounding liability in the context of technological change and on the various mechanisms for compensating victims.

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Why was a revision of the liability regime necessary?

In the current context of digital transformation, updating the legal framework governing product liability for defective products has now become unavoidable. The European directive adopted on 23 October 2024 introduces genuine advances designed to address the challenges raised by the rise of technological innovation and connected devices. In a society where consumers increasingly interact with smart technologies, it was crucial to reconsider the notion of a "defective product" and to broaden its scope of application.

One of the main developments lies in the explicit inclusion of new elements, such as electricity and software, within the definition of a product. This reflects the European Union's intention to modernise and adapt the legal framework to contemporary realities. However, in order to support innovation, it should be noted that the text excludes free and open source software with no commercial purpose from this liability regime.

Another important point is the inclusion of intangible components, such as digital manufacturing files and integrated services. This reflects an understanding of the risks associated with an increasingly dematerialised environment, where elements such as artificial intelligence systems must be taken into account in manufacturers' liability.

At the same time, the directive continues to adopt the classic approach to product defects, whether intrinsic or extrinsic. However, it broadens this notion to take account of recent technological developments. For example, a product may now be deemed defective even on the basis of its capacity to learn or evolve after being placed on the market, which is fundamental for products incorporating artificial intelligence. The impact of this reform is twofold: it better protects consumers while imposing increased obligations on market players.

To ensure optimal protection, it is also crucial to assess product safety beyond their physical design; this now includes requirements relating to cybersecurity, a major issue in an interconnected world. The reform thus paves the way for broader and modernised liability, adapted to today's technological challenges.

This transformation of the law is also a response to the desire to balance the impact of modern challenges on the liability of manufacturers and distributors. It is essential to examine these developments in order to understand how they will influence future interactions between consumers and businesses.

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What are the new liability arrangements for manufacturers and distributors?

The recent Directive 2024/2853 has brought significant changes to the liability arrangements for manufacturers and distributors. One of the significant advances is the clear distinction between the different types of market players, in particular manufacturers, suppliers and distributors. Each of them is now assigned specific responsibilities based on their role in the distribution chain.

In particular, the directive emphasises the importance of product transparency and traceability. This entails compliance obligations for manufacturers, who must not only ensure that their products meet safety standards but also provide detailed information on the design and manufacture of the products. For example, failure to comply with the instructions for use, often issued by the manufacturer, may now constitute grounds for increased liability, particularly if a user suffers harm.

• Strengthened liability: Manufacturers must prove that they have taken all necessary measures to prevent their product from being defective.
• Information obligations: An obligation to inform consumers about the potential risks associated with the use of a product.
• Regulations concerning connected devices: Specific criteria are established for the safety of products integrated into the Internet of Things.

Another central aspect of this reform is the emphasis on the principle of product safety. This translates into a heightened requirement for the assessment of potential risks, particularly with regard to emerging technologies such as artificial intelligence. Manufacturers will therefore have to demonstrate that their products do not pose a danger to users, even in unpredictable contexts of use.

As regards distributors, the directive introduces greater liability for the products they place on the market. They must ensure that products comply with the applicable safety standards. Consequently, the supply chain will have to be monitored rigorously to prevent any defective products from being placed on the market.

The implementation of these new liability arrangements therefore raises questions about the acceptable risks borne by manufacturers and distributors. This reflection is essential, as it must ensure a balance between consumer protection and the encouragement of innovation within a rapidly evolving legal framework.

Accordingly, the next reflection will turn to the implications of these changes for the compensation of victims, where the new liability elements will have a direct impact on consumers' rights in the event of accidents linked to defective products.

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How does the reform affect the compensation of victims?

Directive 2024/2853 represents a significant turning point in the field of compensating victims of defective products. The reform introduces new arrangements aimed at strengthening consumer protection while ensuring that the specific features of the harm caused are better taken into account. This section addresses the main changes and their impact on victims' rights.

First, the reform broadens the scope of compensable harm, allowing victims to claim redress for damage that was previously excluded. Thus, beyond personal injury and damage to property, victims will now be able to obtain compensation for:

• Psychological harm: Medically recognised psychological disorders will be taken into account, marking a major advance in the consideration of non-physical harm.
• Destruction of personal data: The loss or corruption of data, where it is not used for professional purposes, is now compensable, illustrating the adaptation of the legal framework to digital challenges.

This development takes place in a context where artificial intelligence and connected devices play a growing role. Damage caused by these technologies, whether physical or intangible, will now be taken into account in the assessment of harm. This ensures greater protection for users against the impact of these new technologies on their daily lives.

In addition, the reform makes it easier for victims to prove the defect. The new provisions allow presumptions of defectiveness and of a causal link to be established, particularly in complex technical contexts. This represents a genuine rebalancing in favour of victims, who are often faced with difficulties in proving their harm in cases involving advanced technological products.

Finally, the directive emphasises transparency in the administration of evidence. Member States will be required to ensure that victims can obtain from the court an injunction ordering the disclosure of evidence held by the defendants. This measure is paramount, especially in disputes relating to artificial intelligence systems, where the information asymmetry between producers and victims is particularly pronounced.

These measures aim to foster greater legal certainty for consumers, by enabling them to obtain adequate redress in the event of harm caused by defective products. Directive 2024/2853, by addressing the modern challenges of compensating victims, takes on a key role in the evolution of practices in the field of product liability for defective products.