| Европейски институт по право | Evropský právní institut | Europäisches Rechtsinstitut | Ευρωπαϊκό Ινστιτούτο Δικαίου | Institut européen du droit | Eiropas Tiesību institūts | Európai Jogi Intézet | Europees Rechtsinstituut | Instituto Euro- peu de Direito | Európsky právny inštitút | Euroopan oikeusinstituutti | Instituto Europeo de Derecho | Europæisk Ret- sinstitut | Euroopa Õigusinstituut | Istituto Europeo di Diritto | Europos teisės institutas | L-Istitut Ewropew dwar id- Dritt | Europejski Instytut Prawa | Institutul EuropeanBringing de Legal Drept Experts| Evropski Together pravni inštitut | Europeiska rättsinstitutet | | Европейски институт по право | Evropský právní institut | Europäisches Rechtsinstitut | Ευρωπαϊκό Ινστιτούτο Δικαίου | Insti- tut européen du droit | Eiropas Tiesību institūts | Európai Jogi Intézet | Europees Rechtsinstituut | Instituto Europeu de Direito | Európsky právny inštitút | Euroopan oikeusinstituutti | Instituto Europeo de Derecho | Europæisk Retsinstitut | Euroopa Õi- gusinstituut | Istituto Europeo di Diritto | Europos teisės institutas | L-Istitut Ewropew dwar id-Dritt | Europejski Instytut Prawa | Institutul European de Drept | Evropski pravni inštitut | Europeiska rättsinstitutet | | Европейски институт по право | Evropský právní institut | Europäisches Rechtsinstitut | Ευρωπαϊκό Ινστιτούτο Δικαίου | Institut européen du droit | Eiropas Tiesību in- stitūts | Európai Jogi Intézet | Europees Rechtsinstituut | Instituto Europeu de Direito | Európsky právny inštitút | Euroopan oike- usinstituutti | InstitutoNewsletter Europeo de Derecho | Europæisk Retsinstitut | Euroopa Õigusinstituut | Istituto Europeo di Diritto | Euro- pos teisės institutas | L-Istitut Ewropew dwar id-Dritt | Europejski Instytut Prawa |Issue Institutul 1: January–February European de Drept | Evropski2021 pravni inštitut | Europeiska rättsinstitutet | Европейски институт по право | Evropský právní institut | Europäisches Rechtsinstitut | © The European Consumer Organisation Consumer European The © Inside this Issue: Cover by Monique Goyens Director General of the European Consumer Organisation (BEUC) Cover Letter on the EU Product Liability Directive 4 ELI Innovation Paper Connect 6 Spotlight 8 ELI Decennial Special Contact us [email protected] 11 ELI Council Meeting Stay up to date 12 Updates on ELI Projects Latest ELI news 14 ELI Membership Spotlight on Product Liability Updates in the Digital Age by Bernhard A Koch Photo Credits 16 Upcoming ELI Events Pictures were provided by the contributors The most obvious flaw of the PLD as to the ELI Newsletter and are taken from 17 Save the Date it stands is its lacking definition of the Pixabay and Pexels. crucial term ‘product’, leaving it open whether it extends to digital data. In 18 ELI Young Lawyers 1988, the Commission argued that Imprint Award software were within its scope, but Media Owner & Editor: that is of little help today, since at the European Law Institute (ELI) time software was not marketed in Schottenring 16/175 purely digital form yet. 1010 Vienna, Austria Cover Letter from Monique Goyens Message from Monique Goyens Director General of BEUC Dear ELI Members and Friends A lot of water has flowed under the the digital revolution.2 It goes with- bridge since 1985. That year, Mikhail out saying that the products that the Gorbachev became the last USSR Sec- drafters of the PLD had in mind back retary General, Nelson Mandela was in the 1980s are a far cry of those still imprisoned at Robben Island, Bob surrounding consumers nowadays. Dylan celebrated his 44th anniver- Relying on digital content, inter-con- sary, while compact discs and other nected and sometimes guided by CD players had only recently land- automated decision-making, prod- ed on the shelves of our European ucts have become increasingly com- stores. That same year, after tense and plex and the damage that they may lengthy negotiations, which I had the cause when things go wrong has chance to follow in my early career as drastically expanded to include for a consumer advocate, the EU adopted example loss of data, identity thefts a breakthrough directive on product or harm caused by the unpredicted liability (‘PLD’). behaviour of robots. As a cross-coun- try survey conducted by BEUC in © The European Consumer Organisation 36 years later, the USSR is gone, Man- autumn 2020 showed,3 a majority dela has received the worldwide rec- of EU consumers considers that AI necessary precautions when they de- ognition that we know, and CD play- is potentially dangerous because velop their products. ers, today progressively eclipsed by machines can fail and, in such situ- streaming, look more like relics. ations, it is ultimately not clear who Several golden principles should But the PLD is still here while, as Dy- the liable person is in case of harm. guide EU policymakers when updat- lan’s song says, ‘the times they are ing the PLD to ensure it is consum- A-changin’’. 1 Updating the PLD is therefore not er-friendly.4 First, it is essential to pro- only about defending the rights and vide legal certainty and clarity for all Despite its remarkable longevity, the property of individuals but, more stakeholders. For example, it should this legislation has today reached its generally, it is about promoting the now be well established that digital limits. Over the years, the need to re- collective interest of our society, en- content and digital services can fall view the PLD has been documented suring an effective access to justice under the definition of “product” un- by many expert and policy reports. for all harmed individuals, and incen- der the PLD. Recently, the European Parliament tivising professionals to take all the also called on the European Com- Second, rules should not impede mission to adapt the existing liabili- 2 European Parliament resolution harmed individuals from seeking ty rules to address the challenges of of 20 October 2020 on a civil liabil- compensation. Therefore, the bur- ity regime for artificial intelligence den of proof should be reversed, (2020/2014 INL, at pt. 8). and it should be enough for the in- jured party to prove the existence 3 BEUC, ‘Artificial Intelligence: what consumers say – findings and policy 4 recommendations of a multi-country BEUC, ‘Product Liability 2.0: How to 1 Bob Dylan, The Times They Are survey on AI’, September 2020. make EU rules fit for consumers in A-Changin’, 1964. the digital age’, April 2020. 2 Cover Letter from Monique Goyens of a damage resulting from a prod- Digital Age will be an important build- liability cases nor drastic increases in uct. Moreover, the liability thresh- ing block for the upcoming policy dis- the level of insurance premiums as a old of €500 should be removed. cussions on the future of the PLD. consequence of the PLD. Therefore, as Dylan’s song rightly says, it is now Third, harmed plaintiffs should have The EU is currently working on several time to look ‘beyond the horizon’6 and clear ‘go-to’ points to which they can initiatives that will profoundly shape to work together for an ambitious and turn in case of harm. For this reason, the upcoming regulatory frame- consumer-centric updated product li- all professionals involved in the sup- work for AI and the future of digital ability framework. ply chain should be jointly liable, and products and services in the Internal online marketplaces should also be Market. This includes the Digital Ser- In 2021, Bob Dylan will celebrate his made liable under certain circum- vices Act (‘DSA’) and the revision of 80th birthday. Let’s hope that we will stances when they sell or facilitate the the General Product Safety Directive also remember this year as the one circulation of defective products. In (‘GPSD’). Together with the revision where the PLD managed to success- a study published in February 2021, of the PLD, they are all the differ- fully embrace the challenges of the consumer groups found that 66% of ent pieces of the same puzzle which digital revolution. the 250 investigated products sold should aim to ensure the highest level online turned out to be unsafe.5 of protection for consumers. It is thus essential that all of this legislation is Fourth, product liability rules should closely coordinated to ensure a solid follow and accompany the dynamic EU regulatory framework. nature of digital goods, which may Monique Goyens evolve during their lifespan. Produc- EU policymakers and all involved Director General of BEUC, The Euro- ers’ liability should thus no longer stakeholders have to be up to the pean Consumer Organisation* stop once products have been put new opportunities which a revision of on the market and the risk develop- the PLD represents today. As the ex- ment defence should no longer be a perience has shown, the fears which valid reason for escaping liability. Fi- plagued the preparatory works of 6 Bob Dylan, Beyond the Horizon, nally, as digital goods have triggered the PLD have ultimately not mate- 2006. important changes in the types of rialised. Contrary to what some had * The author wishes to thank Alexandre Biard (Senior Legal Officer at BEUC) for the prepa- harm likely to impair consumers’ well- predicted back in the 1980s, we have neither observed a flood of product ratory work towards the finalisation of this being, product liability rules should contribution. no longer be limited to the compen- sation of physical injuries and other damage to property, but also ensure compensation in case of immaterial damage and pure economic losses. In