GERMANY Trends and Developments Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
The new Product Liability Directive The revised Product Liability Directive (EU) 2024/2853 modernises EU product liability law by broadening the definition of “product” to include digital files, raw materials, electricity and most software, including artificial intelligence (AI) systems. However, non-commercial and open- source software are excluded from this defini - tion. Strict liability now applies to both physical and digital products. The new Product Liability Directive also extends liability to additional par - ties such as authorised representatives, fulfil - ment service providers and online platform operators, increasing exposure throughout the supply chain. Anyone who significantly alters a product out - side of the manufacturer’s control and then mar - kets it is also treated as a manufacturer, raising liability risks for lower-tier suppliers. The criteria for determining product defects have been expanded to reflect technologi - cal advances and digital connectivity. Factors such as a product’s ability to learn, update or change functions after sale as well as cyberse - curity requirements are now relevant in assess - ing defectiveness. Companies must ensure that updates or external changes do not compromise safety as liability continues for as long as the product remains under the manufacturer’s con - trol, including through software updates. The new Product Liability Directive also intro - duces rules on evidence disclosure and burden of proof, which increase risks for businesses further. According to the new rule on the disclosure of evidence, the defendant will be obliged to dis - close relevant evidence at the request of a claim - ant who has brought an action for compensation
for damage caused by a defective product and has presented the plausibility of the claim for damages. It will also be possible to require that the evidence be presented in an easily acces - sible and easily understandable form. This will be particularly relevant in the case of complex design or construction documents and software codes. The claimant of a product liability claim is there - fore granted a right to discovery similar to that under English or US law, which is a novel con - cept in German civil procedural law. The disclo - sure of evidence is to be limited to the extent necessary and the protection of confidential information is to be guaranteed. Although the provision also provides for a corresponding right by the defendant, this is likely to play a much smaller role in reality. Partly in relation to the new clause on the dis - closure of evidence there is a new provision in the revised Product Liability Directive regard - ing the burden of proof. First of all, the revised Product Liability Directive confirms the existing principle which is that the claimant has to prove the defectiveness of the product, the damage suffered and the causal link between the defec - tiveness and the damage. However, in Article 10 of the revised Product Liability Directive, this principle is considerably restricted. The requirements for proving defects and causality in product liability law will be sig - nificantly reduced in the future in favour of the claimant. For example, the revised Product Lia - bility Directive provides for the presumption of the defectiveness of the product: • if the defendant fails to disclose relevant evidence;
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