As highlighted in our previous circular dated 28/11/2024, EU Directive No. 2024/2853 introduces a series of provisions aimed at facilitating the consumer-victim’s ability to seek compensation, thereby strengthening their protection.
First and foremost, the Directive establishes the right of the consumer-victim to access information regarding the alleged defective product held by the manufacturer. This means that an economic operator, belonging to one of the categories of entities deemed liable under the Directive, may be required to provide the consumer-victim with data and information related to the alleged defective product. This facilitates the consumer’s ability to substantiate their compensation claim. The manufacturer cannot invoke the protection of confidential information or trade secrets to refuse such requests from the consumer. Under the Directive, it is for national courts to assess on a case-by-case basis which interest should prevail: the manufacturer’s interest in safeguarding trade secrets or the consumer’s interest in substantiating their claim for compensation. Consequently, following its discretionary balancing of the interests at stake, the judiciary may still order the manufacturer to disclose the requested information while adopting necessary measures to protect the confidentiality of such information as far as possible.
This has at least three decisive implications for the economic operator defending against a compensation claim brought by a consumer-victim:
• The evidence supporting the consumer’s compensation claim may need to be provided by the manufacturer itself.
• The decision on what information must be disclosed to the requesting consumer is left to the discretion of the court, as trade secrets do not represent an insurmountable barrier for the consumer.
• If the manufacturer fails to provide the requested information, the defective nature of the product will be presumed.
In addition to the consumer’s right to access information held by the manufacturer, the Directive contains another provision that significantly reduces the burden of proof on the consumer-victim. In cases where the court deems it excessively difficult for the victim to prove the product defect, the damage suffered, and the causal link due to the technical and scientific complexity of the case, it may presume the existence of the foundational elements of the compensation claim even in the absence of evidence provided by the consumer.
In other words, the court may consider the consumer’s burden of proof fulfilled even if only the probability of the product defect and its causal link to the damage has been demonstrated. While these presumptions are not absolute, the economic operator may present counter-evidence demonstrating the absence of the defect or the causal link. However, it is evident that the Directive significantly eases the burden of proof on the consumer-victim, effectively shifting it to the defendant-manufacturer.
With the same aim of facilitating the consumer’s compensation claims, the Directive extends the limitation period within which the victim must assert their right to compensation. The ten-year limitation period, starting from the date the defective product was placed on the market or from the date the product was placed on the market following a substantial modification, is extended to 25 years if the consumer could not initiate legal proceedings within the ten-year period due to the latency of the injuries caused by the product defect.
Our firm remains available for any necessary clarification.
(Avv. Giampiero Pino) (Dott.ssa Martina Badiali)
