PLD Article 8. Economic operators liable for defective products

The protection of natural persons requires that any manufacturer involved in the production process can be held liable, in so far as a product or a component supplied by that manufacturer is defective. This includes any person who presents themselves as the manufacturer by putting, or authorising a third party to put, their name, trademark or other distinguishing feature on a product, since by doing so that person gives the impression of being involved in the production process or of assuming responsibility for it. Where a manufacturer integrates a defective component from another manufacturer into a product, an injured person should be able to seek compensation for the same damage both from the manufacturer of the product and from the manufacturer of the component. Where a component is integrated into a product outside the control of the manufacturer of that product, an injured person should be able to seek compensation from the component manufacturer where the component itself is a product under this Directive.

In order to ensure that injured persons have an enforceable claim for compensation where a manufacturer of a product is established outside the Union, it should be possible to hold the importer of that product and the authorised representative of the manufacturer, appointed in relation to specified tasks under Union legislation, for example under product safety and market surveillance legislation, liable. Market surveillance has shown that supply chains sometimes involve economic operators whose novel form means that they do not fit easily into traditional supply chains under the existing legal framework. Such is the case, in particular, with fulfilment service providers, which perform many of the same functions as importers but which might not always correspond to the traditional definition of importer in Union law. Fulfilment service providers play an increasingly significant role as economic operators, enabling and facilitating access to the Union market for products from third countries. That shift in relevance is already reflected in the product safety and market surveillance framework, in particular Regulations (EU) 2019/1020 and (EU) 2023/988 of the European Parliament and of the Council. Therefore, it should be possible to hold fulfilment service providers liable, but given the subsidiary nature of their role, they should be liable only where no importer or authorised representative is established in the Union. In the interests of channelling liability in an effective manner towards manufacturers, importers, authorised representatives and fulfilment service providers, it should be possible to hold distributors liable only where they fail to promptly identify a relevant economic operator established in the Union.

Online selling has grown consistently and steadily, creating new business models and new actors in the market, such as online platforms. Regulation (EU) 2022/2065 of the European Parliament and of the Council and Regulation (EU) 2023/988 regulate, inter alia, the responsibility and accountability of online platforms with regard to illegal content, including in relation to the sale of products. When online platforms perform the role of manufacturer, importer, authorised representative, fulfilment service provider or distributor in respect of a defective product, they should be subject to the same liability as such economic operators. Where online platforms play a mere intermediary role in the sale of products between traders and consumers, they are covered by a conditional liability exemption under Regulation (EU) 2022/2065. However, Regulation (EU) 2022/2065 provides that online platforms that allow consumers to conclude distance contracts with traders are not exempt from liability under consumer protection law where they present the product or otherwise enable the specific transaction in question in a way that would lead an average consumer to believe that the product is provided either by the online platform itself or by a trader acting under its authority or control. In keeping with that principle, where online platforms so present the product or otherwise enable the specific transaction, it should be possible to hold them liable in the same way as distributors under this Directive. Therefore, provisions of this Directive relating to distributors should apply analogously to such online platforms. That means that such online platforms should be liable only where they present the product or otherwise enable the specific transaction in a way that would lead an average consumer to believe that the product is provided either by the online platform itself or by a trader acting under its authority or control, and only where the online platform fails to promptly identify a relevant economic operator established in the Union.

Where victims fail to obtain compensation because no person is held liable under this Directive or because the liable persons are insolvent or have ceased to exist, Member States can use existing national sectoral compensation schemes or establish new ones under national law to appropriately compensate injured persons who suffered damage caused by defective products. It is for Member States to decide whether such compensation schemes are funded in whole or in part from public or private revenue.