EU Trends and Developments Contributed by: Hans-Patrick Schroeder, Kristina Weiler, Laura Knoke, Anita Bell and Rixa Kuhmann, Freshfields
Expanded scope of compensable damage The PLD extends the scope of protected legal inter - ests in Article 6. Medically recognised damage to psy - chological health is now expressly recoverable. The destruction or corruption of personal data may also constitute compensable harm, though this is distinct from data leaks or breaches of data protection rules. The PLD abolishes previous minimum thresholds and financial caps on liability. The removal of minimum thresholds may make it worthwhile to bring smaller- value claims collectively. Extended limitation period for latent injuries For personal injuries with long latency periods, where symptoms are, according to medical evidence, “slow to emerge”, the limitation period for claims is extend - ed from ten to 25 years after the product was placed on the market or put into service. This creates obvi - ous challenges for defending claims after such peri - ods and has implications for the insurability of product liability risks. Procedural mechanisms lowering evidentiary hurdles for claimants The PLD introduces two closely interlinked procedural mechanisms that are intended to significantly ease the path to recovery for claimants: disclosure obligations and rebuttable presumptions. Under Article 9 PLD, at the request of a claimant who presents a “plausible” case, courts may order defendants to disclose relevant evidence, which could include:
product safety requirements, namely safety-relevant cybersecurity requirements, may thus be taken into account by courts and authorities when establish - ing a product’s defectiveness, while preserving the rights of the defendant (Recital 46). Recital 34 also clarifies that interventions by competent authorities do not in themselves create a presumption of defective - ness, indicating that relevant Union or national safety requirements need to have been adopted to protect consumers from harm, relate to the safety expecta - tions of the public and be substantial on the merits to support establishing a defect in a product. Hence, a breach of purely formal requirements will typically be insufficient to constitute a liability-inducing product defect. Accordingly, the starting point for the rebut - table presumption of a defect is non-compliance with mandatory product safety requirements intended to protect against the risk of damage suffered by the injured person. Ultimately, it will be crucial to iden - tify the mandatory safety requirements specific to the product in question to ensure its safety and distinguish them from other product-related obligations imposed on economic operators under EU and national laws. For digital products and AI, the PLD introduces addi - tional factors that courts must consider when assess - ing defectiveness, including the effect of a product’s ability to continue to learn or acquire new features after market placement, the foreseeable effect of other products expected to be used together with it (includ - ing through interconnection) and relevant product safety and cybersecurity requirements (Article 7 (2) PLD). However, a product shall not be deemed defec - tive merely because a better or improved version, including through subsequent updates or upgrades, is available on the market (Article 7 (3) PLD). The relevant point in time for assessing defective - ness is no longer limited to the moment of placing on the market but extends to the moment the product leaves the manufacturer’s control. A manufacturer retains control if it has the ability to supply updates and since digital products and AI systems are typically subject to continuous learning, updates and patches throughout their lifecycle, defects arising only after market placement can still form the basis of liability (Article 7 (2)(e) PLD).
• design documentation; • software source code; • training and validation data; and • test reports.
• Disclosure is limited to what is “necessary and proportionate”. Courts must consider the protec - tion of: • confidential information; • trade secrets; and • legal professional privilege.
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