The European Law Institute Publishes ELI Draft of a Revised Product Liability Directive


Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (the 1985 PLD, as amended in 1999) has been the basis for product liability in the EU for almost four decades. The ELI PLD Draft aims at proposing solutions that will make the 1985 PLD fit for to the digital age.

The 1985 PLD’s technology-neutral and cross-sectoral approach has made it rather resilient to many developments, but digitalisation, and in particular the increasing interaction between, and gradual merging of, tangible and purely digital goods means that the 1985 PLD is no longer as suitable in protecting consumers and other victims of harm caused by unsafe products.

The ELI PLD Draft aims at proposing solutions that will make the 1985 PLD fit for the digital age. It builds on earlier ELI output on the subject (see below), and was drafted in full acknowledgment of current plans by the European Commission to amend the 1985 PLD. It aims at providing a comprehensive, coherent and consistent model that can also serve as a point of reference for a future debate on a revision of the 1985 PLD at EU level.

Reflecting on the Team’s output, Bernhard A Koch, the project’s Co-Reporter said: ‘After commenting on various aspects of the PLD that seem to require at least reconsideration, we wanted to show, with the example of an actual legislative draft text, that there are indeed ways of implementing our suggestions.’

That ‘[d]igitalisation has an impact on most aspects of product liability, including the notion of product, the persons that can be held liable, relevant harm, defences, etc’ was emphasised by Jean-Sébastien Borghetti, the other project’s Co-Reporter, who went on to add that ‘the team has done its best to tackle all these issues in a coherent way, as well as others, such as the interaction between product liability and product safety.’

The ELI PLD Draft is a perfect example of an output which has immediate practical utility. As Christiane Wendehorst, the project’s Chair, emphasised, ‘Legal scholars often tend to present their good ideas in the abstract – it is one of the hallmarks of ELI work to also demonstrate how they might look in practice.’

The output is available, which is currently being formatted, is available here. A webinar on the topic, open to the public free of charge, will take place on 29 August 2022 from 12:30–14:00 CET. To register, please click here.

For an overview of ELI’s previous interventions on the topic, please see:

Guiding Principles for Updating the EU Product Liability Directive for the Digital Age’, authored by Christian Twigg-Flesner, which set out concrete propositions for updating the EU Product Liability Directive with a view to adapting it to the digital age.

ELI Response to the European Commission's Public Consultation on Civil Liability’, prepared under the leadership of Bernhard A Koch, which produced recommendations on the way forward and answered the questions specifically posed by the European Commission.

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