Is Software a Product under the Product Liability Directive? Member State and Academic Perspectives

The Product Liability Directive (85/374/EWG – Abl. L 210, dated August 7th, 1985, p. 29 - PLD) has a broad reach in terms of the products covered, with the Directive referring in Article 2 to “all movables”. Discussion has arisen in respect of some product types, and in recent times new technology has created difficulties. Strikingly, it still remains an open question whether software is a ‘product’ within the meaning of Art 2 of the Directive. This is clearly an unacceptable position given the prominence of new technology in the modern economy. The current review of the Directive and the drafting of accompanying Guidelines thus presents an opportunity to clarify this issue thereby enhancing consumer protection and providing greater legal certainty to industry.