New EU Liability Proposals on Products and AI (EU)

On 28 September, the European Commission proposed 2 new instruments –

(1) A Directive to update existing rules on the strict liability of manufacturers for defective products (replacing the existing Product Liability Directive dating from 1985).

(2) A new Directive to harmonise national liability rules for artificial intelligence ( AI).

Further information on both instruments is here.

The new Product Liability Directive (PLD) aims (amongst other objectives) to ensure there is always a business in the EU that can be held liable for defective products bought directly from manufacturers outside the EU.

If the new PLD proposal is ratified, the proposal is that Member States would need to bring forward the necessary legislation to transpose and comply with this Directive within twelve months of it coming into force.

New General Product Safety Regulation (EU)

Agreement has been reached (between the European Council and the European Parliament) on the EU’s proposed General Product Safety Regulation (GPSR). The GPSR will replace the 2001 General Product Safety Directive.

Information on the GPSR is here. The GPSR proposal (COM(2021) 346 final) is here.

The new rules will oblige economic operators to designate a responsible person for products sold online and offline, whether they originate from the EU or from a third country.

The responsible person will be in charge of checking that technical documentation exists for the products that they are responsible for offered by the economic operator and that products are accompanied by instructions and safety information.

Following the formal adoption of the regulation and its entry into force, EU member states will have 18 months to apply the new rules on general product safety.

The GPSR will be added to Cardinal Environment EHS Legislation Registers & Checklists, where subscribers had the GPSD (the Directive), and it will also be supplied to subscribers in Britain (for look-up) purposes, again where the GPSD is already in the look-up list.

EU Law Revocation (Britain) UPDATE

The Retained EU Law (Revocation and Reform) Bill (I posted about recently) is in Committee stage, and the Public Bill Committee (the relevant Committee) yesterday has asked for submissions to it – here.

You can see from the link, the purpose of the Bill is to sunset (remove from the statute book) certain types of law by end 2023. In particular, the Bill will completely overhaul a body of UK domestic law known as “retained EU law” (REUL). This is a category of law that came into being as a result of the UK exit from the EU. It includes both Retained EU instruments, and certain domestic laws that gain their authority in a particular way.

Note: when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline of 5.00pm on Tuesday 22 November.

As I have written in the last Email Alert to clients, we will commence listing the laws to be affected shortly, and this list will display on Cardinal Environment Limited EHS Legislation Registers and Checklists from Jan 2023 (earlier drafts will display earlier) and be subject to tracking through 2023.

A very considerable number of laws will be affected.

We expect most affected laws to be replaced with new laws, covering the same obligations. The tracking evident on Legislation Registers and Checklists will identify progress.

We do not expect that obligations will be removed altogether. If a law is removed without a replacement, we expect the obligations to be inserted by amendment into other pre-existing law, and the tracking will identify this.

Nonetheless, this is a complex process.

Class Action in Consumer Protection (EU Law)

The Council of the EU today reached agreement on a draft directive on representative actions for the protection of the collective interests of consumers.

The draft directive is here.

The directive empowers qualified entities, such as consumer organisations, to seek, in addition to injunctions, also redress measures, including compensation or replacement, on behalf of a group of consumers that has been harmed by a trader in violation of one of the EU legal acts set out in an annex to the directive. These legal acts reflect recent developments in the field of consumer protection and extend to areas such as financial services, travel and tourism, energy, telecommunications and data protection, in addition to general consumer law.

Member states shall, for the purpose of representative actions for redress, be free to choose between an opt-in and an opt-out system. In an opt-in system, consumers will be required to express their wish to be represented by the qualified entity for the purpose of a particular representative action. In an opt-out system, consumers who do not wish to be represented by the qualified entity for the purpose of a particular representative action will be required to make a statement to that effect.

Member states will have 30 months from the entry into force of the directive to transpose it into national law, as well as an additional 12 months to start applying these provisions.

The directive will apply to representative actions brought after the date of application.

On the basis of the agreed text, the Council will start negotiations with the European Parliament with a view to exploring the possibility of an agreement for the swift adoption of the directive at second reading (“early second reading agreement”).