ItalySchema di decreto legislativo (Atto del Governo 434), Implementation of Directive (EU) 2024/2853 on Liability for Defective Products
In committee, dated , as of .
A product liability rule binding public and private bodies.
- Private right of action
- Yes
As of .
Where it has got to
The text described here is Schema di decreto legislativo, Atto del Governo n. 434, testo trasmesso alla Presidenza della Camera dei deputati. That print is AG 434, published .
Locally, this stage is parere della Commissione II (Giustizia) della Camera dei deputati.
The stage above is recorded at documenti.camera.it.
On the Justice Committee of the Camera dei deputati gave a favorable opinion with observations. The text bears a blank date for the final deliberation of the Council of Ministers.
What it requires
- The draft treats software as a product, except free and open-source software that you develop or supply outside a commercial activity (Art. 115(2)(d) as proposed).
- If you develop, produce or make a product, software included, or have it designed or made, or present yourself as its manufacturer by putting your name, trade mark or another distinguishing feature on it, you answer as its manufacturer for the damage a defect in it causes (Arts. 115(3)(i) and 116(1)(a) as proposed).
- Keep supplying the software updates and upgrades needed to maintain safety while the product is under your control: a defect due to software, a related service or a missing safety update is not excused because it arose after you placed the product on the market (Art. 118(2) as proposed).
- Meet the product safety requirements that apply to your product, cybersecurity requirements relevant to safety included: they count in deciding whether it is defective (Art. 117(2)(f) as proposed), and failing a mandatory safety requirement meant to protect against the damage suffered presumes it defective (Art. 120(2)(b) as proposed).
- Account for what your product learns or acquires after release: the effect of its ability to keep learning or to acquire new functions is weighed in deciding whether it is defective (Art. 117(2)(c) as proposed).
- Be ready to produce the relevant evidence you hold when a court orders it on a plausible claim: failing to do so presumes the product defective (Arts. 119(1) and 120(2)(a) as proposed).
- If you manufacture outside the Union, the importer, your authorized representative or, failing both, the logistics service provider answers for the product alongside you (Art. 116(1)(c) as proposed).
- If you substantially modify a product outside its original manufacturer's control and then make it available on the market or put it into service, you are treated as its manufacturer (Art. 116(2) as proposed).
- If you distribute a product, or provide an online platform that lets consumers conclude distance contracts with traders, identify the economic operator or your own supplier within one month of the injured person's written request, or you answer for the defective product (Art. 116(3) to (5) as proposed).
- Be able to show that you did not place the product on the market or put it into service, or that it is probable the defect did not exist then (Art. 118(1)(a) and (c) as proposed).
These lines are LexLint's reading of the law's text, as of .
What this law does
The draft decree implements Directive (EU) 2024/2853, which repeals Directive 85/374. The draft decree replaces Title II of Part IV of the Codice del consumo, Articles 114 to 127. Article 114(1) as proposed makes the economic operator liable for the damage caused to a natural person by defects of the product. Article 115(2)(d) as proposed treats software as a product, except free and open-source software developed or supplied in the course of a non-commercial activity.
Article 116(1) as proposed makes liable the manufacturer of a defective product, the manufacturer of a defective component integrated under its control and, for a manufacturer outside the Union, the importer, the authorized representative and, failing both, the logistics service provider.
Article 116(2) as proposed treats a person who substantially modifies a product outside the original manufacturer's control, and then makes it available on the market or puts it into service, as its manufacturer. Article 116(3) as proposed makes each distributor liable where no operator established in the Union can be identified and the distributor does not give the requested information within one month.
Article 116(4) as proposed applies that distributor rule to a provider of an online platform that lets consumers conclude distance contracts with traders, where the conditions of Article 6(3) of Regulation (EU) 2022/2065 are met. Article 117(2)(c) as proposed counts the effects of the product's capacity to keep learning or acquire new functions after it is placed on the market among the circumstances in deciding whether it is defective.
Article 117(2)(f) as proposed counts the relevant product safety requirements, including cybersecurity requirements relevant to safety, among the circumstances in deciding whether a product is defective. Article 118(1)(e) as proposed keeps a defense where the objective state of scientific and technical knowledge did not allow the defect to be discovered when the product was placed on the market or while it was under the manufacturer's control.
Article 118(2) as proposed denies the defense that the defect arose after the product was placed on the market where the defect is due to a related service, software including updates or upgrades, the lack of software updates needed to maintain safety, or a substantial modification, and the product is under the manufacturer's control.
Article 119(1) as proposed requires the court, at the request of an injured person who has presented facts and evidence sufficient to support the plausibility of the claim, to order the defendant to produce the relevant evidence at its disposal. Article 120(2)(a) as proposed presumes a product defective if the defendant fails to produce the relevant evidence under Article 119.
Article 120(3) as proposed presumes the causal link where the product is shown to be defective and the nature of the damage is compatible with the defect. Article 120(4) as proposed presumes the defect, the causal link or both where, despite the production of evidence, the claimant faces excessive difficulties because of technical or scientific complexity and shows that the defect or the causal link is probable.
Article 121(3) as proposed lets a manufacturer that integrates software as a component agree with the maker of that component to waive recourse against it, where the component maker was a micro or small enterprise when the software was placed on the market.
Article 123(1) as proposed covers death and injury to the psycho-physical integrity of the person that can be established by medico-legal assessment, damage to or destruction of any property except the defective product itself, a product damaged by a defective component and property used exclusively for professional purposes, and the destruction or corruption of data not used for professional purposes.
Article 124 as proposed voids any agreement that excludes or limits the economic operator's liability towards the injured person. Article 126 as proposed extinguishes the right to compensation ten years after the defective product was placed on the market or put into service. Article 126(2) as proposed extends that period to twenty-five years where the latency of a personal injury prevented the injured person from starting proceedings within ten years.
Article 3 of the draft applies the new rules to products placed on the market or put into service after . Article 3 of the draft keeps the existing provisions in force for products placed on the market or put into service before that date. The Council of Ministers examined the draft decree on a preliminary basis on . The draft decree was transmitted to the Presidency of the Camera dei deputati on as Atto del Governo 434. On the Justice Committee of the Camera dei deputati gave a favorable opinion with observations.
When LexLint raises it
When your app profile says your app crawls the web, trains models, generates content with AI, deploys a chatbot, sends automated outreach, makes high-risk automated decisions, processes voice recordings, processes biometric data, publishes adult content, operates a social platform, serves under-18s, operates an app store, ships a mobile app, reuses other publishers' content, distributes a software product, records calls, records text chat or tracks devices.