Road map for the revision of Directive 2001/95/EC
The Directive on general product safety, Directive 2001/95/EC, forms the basis of the European legal framework for the safety of consumer products and was implemented into national law by the Product Safety Act. It is designed to provide a "safety net" for consumers, particularly for products which are not covered by more specific harmonization instruments.
Now that the Directive has reached the impressive age of 20, and with the pace of technological development becoming steadily faster, the question has been raised as to whether technology has already overtaken these statutory requirements, at least in part. With this very question in mind, the EU Commission recently published a report on the implications of new technologies and a White Paper on the subject of artificial intelligence.
The guidance on the Product Liability Directive and new technologies, originally set to appear in mid-2019, has still not been issued (as we reported), but the recently published Road Map injects new life into the issue of product liability.
While the Commission states in its "inception impact assessment" that a final decision has yet to be made, it goes on to sketch four possible scenarios for a revision of Directive 2001/95/EC, aside from retention of the status quo:
Scenario 1 – Improved implementation and enforcement
This scenario would include the development of guidance documents with respect to existing legal requirements for the safety of new technologies and product recalls, as well as strengthening the product safety pledge (PDF).
Scenario 2 – Targeted revision
The Directive would be made more explicit and extended in light of the new technological developments. The Commission points out that, as things stand, "stand-alone software" would not be covered by the Directive in this scenario.
Scenario 3 – Full revision
The Directive would be replaced by a Regulation whose content would conform to Scenario 2, and whose scope would be extended to include "stand-alone software" as well as e.g. binding requirements relating to the supply chain and product recalls.
Scenario 4 – Integration of a new instrument
A new legal instrument would be created in addition to Directive 2001/95/EC which would include the content specified in Scenario 3. With respect to the new Market Surveillance Regulation, Regulation (EU) 2019/1020 (see our News) the stated objective is to have a single set of requirements for harmonized and non-harmonized products.
After what appeared to be an extended period of inactivity in terms of legislative measures at the European level relating to the subject of product liability and new technologies, the planned revision of Directive 2001/95/EC is another step in an expansive process (see e.g. our News concerning the Machinery Directive, Directive 2006/42/EC).
As exciting as these developments are, their results should present considerable challenges. It therefore pays to watch this process closely from an early stage so as to be able to adapt in a timely manner to possible new requirements. We will keep you updated here.