The introduction of disclosure obligations is an absolute novelty in German civil procedure law. At present, injured parties who are obliged to provide evidence can often not introduce documents relating to product development and design, formulations, manufacturing, or findings from product monitoring into proceedings; the opposing party only has very limited obligations to file such documents. 

That is going to change:

• Companies can be forced to file evidence in their possession that is required to prove product liability claims. This also includes documents that must first be compiled or classified.
• The requirements for this are low; all that is required is an application by the injured party and the submission of evidence that makes a claim for damages plausible. 
• Courts are to limit the disclosure obligations to the "necessary and proportionate extent". However, given that the system of disclosure obligation is completely new in Continental Europe, so that none of the parties involved in the proceeding – including the courts – is familiar with this concept, a lot of uncertainties and discussions are to be expected. This also applies to the disclosure of trade secrets, for which the legislator allows courts to take "special measures" for protection. What these measures should look like is currently not clear.
• On the upside, the disclosure obligation will also apply in reverse, so that injured parties may also be obliged to submit documents, e.g. on their medical history.

Recommendation: Creation of new SOPs for internal documentation.

The general burden of proof remains the same. Injured parties therefore still need to prove that (i) the product is defective, (ii) they have suffered damage (to health or property) and that (iii) the product defect was the cause of the damage. This allocation of the burden of proof had also been justified by balancing the economic operator's strict liability. 

However, despite the fact that strict liability continues to apply, considerable facilitation of the burden of proof in the form of (rebuttable) presumptions is now being introduced:

• Defectiveness is presumed, for example, if the economic operator breaches its disclosure obligation or if the damage was caused by an "obvious malfunction" under normal use or under ordinary circumstances;
• The causal link between the defect and the damage is presumed if the product is demonstrably defective and the damage is "typical" for the defect.
• The defectiveness and/or the causal link are presumed if, despite fulfilment of the disclosure obligation, the proof is excessively difficult due to technical or scientific complexity and the injured party proves that the defectiveness and/or causality is "probable". 

Here, too, it is to be expected that the various open legal terms will only be clarified in case law that is yet to be developed. However, until then there will be a lot of uncertainty.

Manufacturers and importers are currently liable for product defects regardless of fault; distributors are only liable on a secondary basis.
In the future, far more economic operators than before will be liable for product defects regardless of fault; although many of them do not have any influence on the product as such. In addition to manufacturers, importers and (secondarily) distributor, liability will also be imposed in future on:

• Authorised representatives;
• Persons who substantially modify products already placed on the market;
• Fulfilment service providers (if there is no manufacturer, importer or authorised representative in the EU);
• secondarily also provider of online platforms that allow consumers to conclude distance contracts with traders if none of the primarily liable parties can be identified and they are not identified despite being requested to do so.

Recommendation for newly liable economic operators: seek for appropriate insurance cover.

A product will continue to be considered defective if it does not meet the safety expectations a person is entitled to expect. While this term has so far mainly been shaped by case law, in future, the law will provide far more specifications for the assessment of defectiveness, which is particularly important for technical products.

New is, for example:

• The product is also deemed to be defective if it does not comply with the regulatory safety requirements;
• The assessment should take into account, for example, any ability of the product to continue learning after it has been placed on the market; foreseeable effects of other products on the product if it can be assumed that the products will be used together; corrective actions, such as recalls; in the case of products whose purpose is to prevent harm, failure to fulfil this purpose;
• Relevant time of assessment: In principle, the time of placing on the market remains decisive. However, for products that remain under the control of the manufacturer after this date, the relevant date is the date when the manufacturer no longer has control.

Recommendations: Review product instructions; consider liability implications when deciding on voluntary product recalls.

Due to the no-fault principle, product liability has so far been limited by financial limits. In Germany, for example, property damage of below EUR 500 could not be claimed for, while liability for damages to health was capped at EUR 85 million.

The new Product Liability Directive no longer provides for such liability limits. In future, economic operators can therefore be held liable without limitation, regardless of fault.

Recommendation: Adjust insurance policies.

No-fault product liability claims continue to expire automatically 10 years after the date when the product was placed on the market.

In future, however, there will be an exception if there is a longer latency period of the damage to health. In such a case, claims will only expire after 25 years – a period after which important documents and persons involved are in most cases no longer accessible.

Recommendation: Adapt insurance policies, draft new SOPs for the retention period of certain documentation.

The dossier adopted by the European Parliament is currently undergoing legal linguistic revision and is expected to be voted in the so-called “corrigendum” procedure in autumn. After entering into force, the member states have two years to transpose these new strict product liability rules into national law. In Germany, extensive changes to the ProdHaftG are to be expected. The new, massively tightened product liability will then apply to products that are placed on the market from this date; the previous ProdHaftG will continue to apply to all products that have been placed on the market to date or until implementation.

Author:
Dr. Astrid Seehafer