Product Liability Directive (PLD)

(59) The possibility provided for in this Directive whereby an economic operator that proves that the state of scientific and technical knowledge at the time when a product was placed on the market or put into service or during the period in which the product was within the manufacturer’s control was not such as to enable the existence of a defect to be discovered can avoid liability, the so-called ‘development risk defence’, could be deemed in certain Member States to limit unduly the protection of natural persons. It should therefore be possible for a Member State to derogate from that possibility by introducing new measures, or amending existing measures, to extend liability in such situations to specific types of products if it is deemed necessary, proportionate and justified by public interest objectives, such as those set out in the Treaty on the Functioning of the European Union, namely public policy, public security and public health. To ensure transparency and legal certainty for economic operators operating across the Union, the use of such a derogation from the development risk defence should be notified to the Commission, which should then inform the other Member States. In order to facilitate a coherent approach across Member States and consistency with the objectives of this Directive, the Commission should be able to issue non-binding opinions on the proposed measures or amendments. In order to allow time for the issuing of an opinion, a Member State proposing such measures or amendments should hold the proposed measures or amendments in abeyance for six months following their notification to the Commission, unless the Commission issues an opinion earlier. Such an opinion should be issued after close cooperation between the Member State concerned and the Commission, taking into account the views of other Member States, if any. In the interest of legal certainty and to facilitate continuity of arrangements established under Product Liability Directive 1985 (repealed by new PLD), it should also be possible for a Member State to maintain existing derogations from the development risk defence in its legal system.