PLD Article 9. Disclosure of evidence

In order to reflect the relevance of product safety and market surveillance legislation for determining the level of safety that a person is entitled to expect, it should be clarified that relevant product safety requirements, including safety-relevant cybersecurity requirements, and interventions by competent authorities, such as issuing product recalls, or by economic operators themselves, should be taken into account in the assessment of defectiveness. Such interventions should, however, not in themselves create a presumption of defectiveness.

In light of the imposition on economic operators of liability irrespective of fault, and with a view to achieving a fair apportionment of risk, a person that claims compensation for damage caused by a defective product should bear the burden of proving the damage, the defectiveness of a product and the causal link between the two, in accordance with the standard of proof applicable under national law. Persons claiming compensation for damage are, however, often at a significant disadvantage compared to manufacturers in terms of access to, and understanding of, information on how a product was produced and how it operates. That asymmetry of information can undermine the fair apportionment of risk, in particular in cases involving technical or scientific complexity. It is therefore necessary to facilitate claimants’ access to evidence to be used in legal proceedings. Such evidence includes documents that have to be created by the defendant by compiling or classifying the available evidence. In assessing the request for disclosure of evidence, national courts should ensure that such access is limited to that which is necessary and proportionate, inter alia, to avoid non-specific searches for information that is not relevant to the proceedings and to protect confidential information, such as information falling within the scope of legal professional privilege and trade secrets in accordance with Union and national law, in particular Directive (EU) 2016/943 of the European Parliament and of the Council . Taking into consideration the complexity of certain types of evidence, for example evidence relating to digital products, it should be possible for national courts to require such evidence to be presented in an easily accessible and easily understandable manner, subject to certain conditions.

This Directive harmonises rules on disclosure of evidence only in so far as such matters are regulated by it. Matters not regulated by this Directive include rules on disclosure of evidence with regard to: pre-trial procedures; how specific a request for evidence must be; third parties; cases of declaratory actions; and sanctions for non-compliance with the obligation to disclose evidence.

In light of the fact that defendants might need access to evidence at the disposal of the claimant in order to counter a claim for compensation under this Directive, defendants should also have the possibility of accessing evidence. Similar to a disclosure request made by the claimant, when assessing the request of the defendant for disclosure of evidence, national courts should ensure that such access is limited to that which is necessary and proportionate, inter alia, to avoid non-specific searches for information that is not relevant to the proceedings and to protect confidential information.

In respect of trade secrets as defined in Directive (EU) 2016/943, national courts should be empowered to take specific measures to ensure the confidentiality of trade secrets during and after the proceedings, while achieving a fair and proportionate balance between the interests of the trade secret holder with regard to secrecy and the interests of the injured person. Such measures should include at least measures to restrict access to documents containing trade secrets or alleged trade secrets and to restrict access to hearings to a limited number of people, or allowing access only to redacted documents or transcripts of hearings. When deciding on such measures, it is appropriate that national courts take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and potential harm for either of the parties to a dispute, and, where appropriate, for third parties, which results from the granting or rejection of such measures.