Directive (EU) 2024/2853, which replaces Directive 85/374/EEC, will enter into force on 8 December 2024 and must be implemented by Member States by 9 December 2026. It applies to products put on the market after that date, updates the concepts of 'product' and 'defect' to include digital goods and reinforces the relevance of cybersecurity. It extends compensable damage to include psychological harm, data corruption and material damage with no minimum value, and defines new liable parties, including online platforms and importers outside the EU. It introduces rebuttable presumptions to reduce the asymmetry of information between consumers and economic operators, who may be required to provide evidence. It maintains the limitation and prescription periods, but allows the latter to be extended in the case of latent damage, up to a maximum of 25 years.
Directive (EU) 2024/2853 of the European Parliament and of the Council (Directive (EU) 2024/2853), on the liability of producers for damages caused by defective products, entered into force on 8 December 2024, repealing and replacing the previous Council Directive 85/374/EEC of 25 July, incorporated into the Portuguese legal system in 1989 by Decree-Law 383/89, of 6 November.
The new directive applies to defective products placed on the market or put into service after 9 December 2026, by which date it must be transposed by the Member States.
Update on the concepts of product and defect
In the wake of other recent legislation aimed at modernizing and adapting European Union’s (EU) consumer protection rules in the new digital age (such as the so-called Omnibus Directive), Directive (EU) 2024/2853 updates the definition of “product”. The definition now covers all movables, even in digital format and even if integrated into another movable or immovable good – thus including, for example, electricity, raw materials, and software(whether it is stored on a device, accessed via a cloud system, or provided as a service). In this way, the concept of “product” relevant for the purposes of the producer’s strict liability is finally in line with the definition relevant for the purposes of the Portuguese Decree-Law no. 84/2021, of 18 October (Decree-Law no. 84/2021), which regulates general consumer rights in the purchase and sale of consumer goods.
The concept of “defect” – as opposed to the relevant one for the purposes of the Decree-Law no. 84/2021 (related to the product’s non-conformity with what was contractually agreed or what was reasonably expected by the consumer) – continues to refer to the product’s lack of safety, measured objectively and in accordance with the applicable legislation. The great novelty in this matter lies in the relevance that is now attributed to the vulnerability of the product in terms of cybersecurity – in line, therefore, with the new European regime on general product safety, approved by Regulation (EU) 2023/988 of the European Parliament and of the Council, of 10 May 2023, in force as of 13 December 2024.
New compensable damages
As previously foreseen, according to the new Directive, if a product’s lack of safety results in personal injuries or damages to property (in products other than the defective one), the EU Member States must ensure that the injured party is entitled to compensation.
However, it is now clear that the following damages are also compensable under the new Directive:
- Medically recognized damages to psychological health;
- The destruction or corruption of data (e.g., deletion of data from a hard disk), provided that it is not used for professional purposes; and
- Material damages regardless of their value (no longer subject to a minimum threshold of EUR 500, possibly favouring the emergence of class actions on this basis).
Liable entities
The list of economic operators who are potentially liable, objectively (i.e.,regardless of fault), for this type of defects and damages now includes:
- The manufacturer of the product or of a defective component (if that component has been integrated into a product or interconnected with a product under its control and has rendered the product defective); and
- The importer, if the manufacturer is based outside the EU;
- The fulfilment service provider (i.e., the one who offers at least two services among storage, packaging, addressing or shipping, without having ownership of the product), when there is no importer established in the EU; and/or
- Online platforms, when they present the defective product, or otherwise enable the transaction, in such a way as to mislead an average consumer into believing that the product is supplied by the online platform itself or by a trader acting under its authority or control.
If the injured party is unable to identify one of these economic operators, it can request this information from the distributor of the defective product, and Member States must ensure that the distributor can be held liable if it fails to do so within one month.
These economic operators are jointly and severally liable.
In any case, the Directive still foresees several grounds for the exemption of liability, the proof of which is of the burden of the economic operators, relating, in particular, to not having placed the respective product on the market, the unlikelihood of the existence of the defect at the time of placing on the market, the impossibility of detecting the defect at that time in the light of the objective state of scientific and technical knowledge, or even the product’s compliance with legal requirements.
Burden of proof and new presumptions
Although the burden of proof (of the damages, the defect, and the causal link between one and the other) still lies with the consumer, the European legislator – recognizing the existence of an asymmetry of information regarding the production and operation of products and aiming at a fair distribution of risks – has enshrined a set of rebuttable presumptions.
By way of example only – and just to illustrate the demands that economic operators will face in the near future – it is worth highlighting the presumption of the existence of a defect, causal link, or both, in cases where (i) the injured party “...faces excessive difficulties, in particular due to technical or scientific complexity...” to prove these elements or (ii) “...demonstrates that it is likely...” that the product is defective, that there is a causal link between the defect in the product and the damage, or both.
Similarly, Member States should now ensure that economic operators are, in certain cases and at the request of the injured party, obliged to make available the relevant evidence at their disposal – again, under penalty of heavy reversals of the burden of proof. It will be up to national judges to ensure that the presentation of evidence is limited to what is essential and proportionate, with respect for the protection of confidential information and business secrets.
Limitation and forfeiture periods
Directive (EU) 2024/2853 maintains the limitation period of three years from the date on which the injured party became aware or should reasonably have become aware (cumulatively) of the damage, the defect, and the identity of the relevant economic operator.
The same applies to the expiry period, which remains of 10 years from the date on which the defective product was placed on the market, unless – and this being a new feature of the Directive – during those 10 years it has been impossible for the injured party to bring an action for reasons related to the latency of a personal injury, in which case they will have further 15 years to do so (the expiry period, in this case, being 25 years).
