The proposal for a revised Product Liability Directive: The emperor's new clothes?

Abstract

On September 28, 2022, the European Commission presented the long-awaited proposal for a revised Product Liability Directive (PLD). By adapting rules and concepts to digitalization and circular economy, the revised PLD aims to ensure that the damage that defective products caused can be remedied adequately. This paper provides a comprehensive analysis of the substantive and procedural harmonized rules that are reshaped in the revised PLD. The discussion shows that although the revised version makes progress, ambiguities remain about essential concepts such as ‘product’, ‘damage’, and ‘defectiveness’. Those ambiguities could generate significant legal uncertainties. In addition, it is imperative to consider whether the harmonization that results from the revised PLD strikes a balance between centralized policy goals and local preferences. Since it has been reiterated that the revised PLD will be limited to safety-related harm rather than to harm to other fundamental rights (e.g., data protection and equal treatment), it is also crucial to inquire whether harms of the latter kind can be remedied effectively by other relevant legal regimes.