Directive (EU) 2024/2853, of October 23, 2023, is the last one approved in the list of Civil Justice and was finalized and published during the Spanish Presidency, which was a golden Presidency, as it was complete being the Belgian one. limited by the elections to the European Parliament. The Directive replaces Dir. 85/374/EEC.
This, the oldest in European contract law, established objective criteria for the responsibility of economic operators, in the chain from the manufacturer, and established an objective criterion for the consumer – the one who suffers the damage -, regardless of the subjective nature of the consumer, in as it did not necessarily meet the requirements of the final recipient.
The economic significance of the Directive maintained its seniority, as has happened with Directive 93/13/EEC, of April 13, partially modified – not repealed – by Dir. 2019/2161, of November 27.
In fact, one of the essential points of the 2024 Directive proposal, highlighted during its negotiation, was the extension of the positive subjective scope of application with respect to the protection of health or property, to other natural persons other than consumers. . The civil man, who 40 years ago supported the Barcelona notary FIGA I FAURA as the recipient of the protection of consumer law.
This Directive, together with another one under negotiation, relating to the adaptation of the rules of non-contractual civil liability to artificial intelligence (Directive on liability in matters of AI (COM/2022/496 final)) constitute the new contractual package of Civil Justice.
The previous one is constituted by Directives 2019/990 and 2019/991, relating to certain aspects of contracts for the supply of digital content and services and certain aspects of the contract for the sale of goods. The IA Directive encounters great resistance in the delegations, as it can affect, since there is no obvious regulatory hierarchy in R. (EU) 2024/1689.
The Directive aims to establish common rules on the liability of economic operators for damage suffered by natural persons caused by defective products and on compensation for such damage.
It contains 64 recitals and 24 articles. It must be transposed no later than December 9, 2026. The level of harmonization is expected to be strict and may reach a different level of protection for consumers and other natural persons, although being an issue that generated difficult negotiation, it includes the except in Art. 3 in fine “unless otherwise provided in this Directive”
The essential elements of the Directive are:
The notion of the product whose evaluation as defective is essential, which is significantly expanded from the 1985 definition, obviously, due to the evolution of the industry itself. Now it refers to any movable property, even if it is incorporated into or interconnected with other movable or immovable property; includes electricity, digital manufacturing files, raw materials and software. The transition from a linear to a circular economy involves modifications to products to make them more durable.
The modification of the product if it is substantial – for example, through learning with an AI system, should be considered as a substantially modified product that is marketed or put into service at the time of the modification.
The protection of injured natural persons. This protection requires that any manufacturer involved in a production process can be held responsible, along with the importer and his representative, operating in the supply chain under market surveillance.
The victim – harmed natural person – must be compensated and if this is not possible through the supply chain – manufacturers, importers, authorized representatives and, where appropriate, logistics service providers -, Member States may operate sectoral compensation systems. current national laws or establish new ones.
The equitable distribution of risk is another essential element. The responsibility of economic operators is independent of fault. In order to achieve this balance, a person claiming compensation for damages caused by a defective product must bear the burden of proving the damage, the defective character of the product and causation, in which presumptions of fact play a role. essential role.
Its imperative nature. It is not possible to contractually agree on exemption from liability, with the directive applying to products put into service or placed on the market after December 9, 2026.
Since the contractual prescription is the responsibility of the Member States (the rules of procedural expiration are introduced in Brussels I bis, which is not applicable, given that the injured person addresses their own judicial bodies), obsolescence is analyzed in detail and established the obligation of Member States to publish final judicial decisions issued in application of the directive in a database easily accessible to the public.
The Directive is part of the new private law, partially included in digital law and its transposition in the Member States requires special monitoring.
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