On November 18, 2024, Directive (EU) 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC (the Product Liability Directive) was published in the Official Journal of the European Union.

The Product Liability Directive enters into force 20 days following its publication, on December 8, 2024.

Notably, Recital 13 of the Product Liability Directive provides that a developer or producer of software, including artificial intelligence (AI) systems within the meaning of the AI Act, should be treated as a manufacturer. A 'manufacturer' under Article 4(10) of the Product Liability Directive is 'any natural or legal person who:

• develops, manufactures, or produces a product;
• has a product designed or manufactured, or who, by putting their name, trademark or other distinguishing features on that product, presents themselves as its manufacturer; or
• develops, manufactures, or produces a product for their own use.'

In addition, the Product Liability Directive outlines that since products can be designed in a manner that allows modifications to be made through changes to software, including updates, the same principles apply as to modifications made in other ways. Accordingly, where a substantial modification is made through software update or an upgrade owing to the continuous learning of an AI system, the substantially modified product is considered to be made available on the market or put into service at the time the modification is made.

Furthermore, in relation to the defectiveness of products or the causal link between the damage and the defectiveness of a product, the technical or scientific complexity of determining such should be made by national courts on a case-by-case basis. For example, Recital 48 of the Product Liability Directive details that, in a claim concerning an AI system, claimants are not required to explain the AI system's specific characteristics for the court to decide that excessive difficulties exist in relation to a product. While a claimant should provide arguments to demonstrate excessive difficulties, proof of such difficulties should not be required.

You can read the Product Liability Directive here.