Product liability refresh: the revised EU Directive and UK position

The EU’s revised product liability directive, Directive (EU) 2024/2853, updates its regime on liability for defective products as provided by way of Council Directive 85/374/EEC 1985. The deadline for the transposition of the updated Articles into all Member States’ national legislation is 9 December 2026 at which point the framework shall apply.

This transitional period provides an opportune moment to review product liability law in the United Kingdom and consider how it may be impacted by the above development. To do so, this article shall: first, consider the original product liability directive and corresponding UK-wide legislation – the Consumer Protection Act 1987 (“the 1987 Act”); second, consider some of the developments provided by the revised Directive and third, consider the extent we can expect the UK to adopt national legislature to a similar end.

Directive 85/374/EEC / Consumer Protection Act 1987

Section 1 of the 1987 Act confirms that Part I was specifically enacted to comply with the 1985 product liability Directive. Accordingly, the introduction of strict liability for damage caused by a defective product was transposed from EU Directive to national law. Affording significant protection to the consumer, strict liability means the consumer does not need to evidence fault on part of the defective product’s producer to establish liability. Instead, where the consumer can prove that the damage sustained was caused wholly or in part by a defective product or component therein, the producer, importer or indeed supplier will be liable in damages.

The 1987 Act in accordance with the 1985 Directive defines a product as being “any goods or electricity and…includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise”. The Act confirms the legal test to establish a defect is when one can show that product safety “is not such as persons generally entitled to expect”.

The Revised Directive (EU) 2024/2853

In 2018 the European Commission recognised the 1985 Directive no longer protected consumers in the manner it used to thanks to an accelerating “technological revolution”. Intangible, independent objects such as AI and data updates struggled to fit the 1985 Directive definitions, leaving consumers vulnerable. To remedy this gap, whilst retaining the concept of strict liability, the revised Directive inter alia has expanded the scope of “product”, “defect”, “damages”, and categories of persons that may be found liable. Now a product includes “all movables, even if integrated into, or inter-connected with, another movable or an immovable; it includes electricity, digital manufacturing files, raw materials and software”. In assessing defectiveness, a non-exhaustive list of factors for consideration is provided, including “the effect on the product of any ability to continue to learn or acquire new features after it is placed on the market or put into service”. Such demonstrates the expansive nature and purpose of the revisions; to accommodate complex technologies within the scope of strict liability for damage caused by a defective product.

UK Law Commission Review

No longer an EU Member State the UK will not transpose the revised Directive into UK legislation by the deadline. However, the Law Commission has since independently announced the need for review and reform of the 1987 Act, also citing concerns regarding technological progress, particularly AI. Its Terms of Reference largely refer to the changes found within the Revised Directive. With public consultation on reform proposals anticipated to take place later this year, it remains to be seen whether this will result in like for like legislation or something UK specific. Watch this space.