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On October 23, 2024, the New European Union Product Liability Directive (the "New Directive") (2024/2853) was adopted, replacing Directive 85/374/EEC adopted in 1985. With the New Directive, amendments and additions have been made regarding issues such as compliance with the digital age and the protection of consumer rights. The New Directive must be put into effect by the European Union member states by December 9, 2026. The New Directive will apply to products placed on the market as of December 9, 2026, while Directive 85/374/EEC issued in 1985 will remain valid for products placed on the market before this date.
With the New Directive, the aim is to keep pace with developing technology regarding problems that may arise due to defective product liability and the resolution of these problems. In addition to modernizing product liability rules, another significant regulation introduced is the removal of obstacles facing consumers who have suffered loss and barriers to the compensation of their damages. The European Union has stated that the New Directive will move towards the producer's strict liability. Pursuant to this regulation, consumers who suffer damage for any reason due to a defective product do not have an obligation to prove the fault of the producers if there is a causal link between the defect in the product and the damage occurred. Furthermore, it should be added that the definition of defect has been expanded with the New Directive; a product is considered defective when it does not provide the safety regarding which a person is entitled to expect or under European Union or national laws.
One of the fundamental objectives of the New Directive is to adapt the product liability rules that have been applied since 1985 to contemporary life and to modernize them in this direction. The definition of "product" in Directive 85/374/EEC has been amended due to the place acquired by digitally comprehensive products in commercial life, and digital manufacturing files and software-comprehensive products have also been taken into account in the definition of product. Increasing technological developments have also necessitated some changes in the scope of damage. In this direction, in a manner that also facilitates consumers' ability to file lawsuits, the scope of damage has been expanded to include subjects such as software, data security, cyber security, etc., and the limits of liability have been broadened. Software and digital service providers, online marketplaces, and fulfilment service providers have also been included within the scope of those responsible for product safety.
Any software produced and developed specifically for artificial intelligence is also covered under the New Directive. Any defect that may arise due to these software, systems, and products placed on the market may create liability. Additionally, not only the moment of placement on the market; defects that may arise after updates and upgrades brought within the framework of software, systems, or any product placed on the market are also within the scope of application of the New Directive.
Under the New Directive, the type of defective product does not matter; all products are within the scope of the new rules provided they are placed on the European Union market. Anyone who suffers damage due to a defective product can claim their compensation rights by filing a lawsuit in local courts pursuant to the New Directive. The identification of persons who can be held liable due to a defective/faulty product is clearly made with the New Directive. In this context, the manufacturer of the defective product will be held liable first; if this person is not established in the European Union, while the manufacturer's liability continues, other persons established in the European Union will be held liable. These persons can be importers, authorized representatives, or fulfilment service providers.
Producers/businesses have liability for ten years from the date the defective products are placed on the market. Regarding healthcare services, these periods can be further extended. In medical cases, if there is a latent defect in the product, the liability period can be extended up to twenty-five years. In addition to these regulations, consumers have a period of three years to file a compensation lawsuit in the local court within the scope of damages arising from the defective product.
Regarding the burden of proof, under the New Directive, if the injured party makes a reasonable claim for compensation and supports this claim with sufficient facts and evidence, courts may compel the defendant to disclose relevant evidence, provided that measures are taken to protect the defendant's trade secrets and confidential information.
In Turkish Law, parallel to the New Directive, the Product Safety and Technical Regulations Law (the "Law") numbered 7223 exists. The Law regulates issues such as product safety, product liability compensation, and manufacturer/representative/importer obligations in parallel with the New Directive. However, contrary to the New Directive, the Law imposes the burden of proof regarding the defectiveness of the product on the party claiming to have suffered damage. In Article 6 of the Law titled "Product liability compensation", proof of the damage and the causal link is required from the injured party. Regarding the right to claim compensation, the Law and the New Directive foresee similar provisions. According to the Law, the statute of limitations is three years from the date the injured party learns of the damage and the person liable for compensation, and in any case, ten years from the date the damage occurred.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
