Activities of Karen MELCHIOR related to 2022/0302(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on liability for defective products
Amendments (16)
Amendment 83 #
Proposal for a directive
Recital 13
Recital 13
(13) In order not to hamper innovation or research, this Directive should not apply to freResearch by the European Commission shows that Open Source software contributes between €65bn - €95bn to the European Union’s GDP, and provides significant growth opportunities for the Union economy. Therefore, in order not to hamper innovation or research, freeware and open-source software developed or supplisupplied or developed outside the course of a commercial activity. This is in particular the case for software, including its source code and modified versions, that is openl should not be covered by this directive. In the context of software, a commercial activity might be characterized not only by charging a price for a product, but also by schared and freely accessible, usable, modifiable and redistributable. However wging a price for technical support services, by providing a software platform the core functionality of which relies on othere software is supplied in exchange for a pricervices which the manufacturer monetises, or by the use orf personal data is usedfor reasons other than exclusively for improving the security, compatibility or interoperability of the software, and is therefore supplied in the course of a commercial activity, the Directive should apply.
Amendment 86 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Due to the permissive nature of open-source licences, open-source software can be used as a component in products without need for the consent or knowledge of the original author, allowing for manufacturers to build new products and services quickly, however open-source software developers are not necessarily compensated for this use and often work on the software in their free time. Therefore, when a manufacturer uses open-source software as a component in a product, the manufacturer of the product should be liable for the component unless otherwise agreed, for instance through the provision of commercial technical support either by the developer or a third-party.
Amendment 87 #
Proposal for a directive
Recital 13 b (new)
Recital 13 b (new)
(13b) Public open-source code and software repositories allow developers to access a wide range of resources for software development, and allow for developers to share their code with the wider open-source community. These repositories operate as a public good, and therefore should not be considered as providers, manufacturers, importers or distributors, nor should their activity be considered as commercial within the meaning of this directive.
Amendment 88 #
(14) Digital manufacturing files, which contain the functional information necessary to produce a tangible item by enabling the automated control of machinery or tools, such as drills, lathes, mills and 3D printers, should be considered as products, in order to ensure consumer protection in cases where such files are defective. For the avoidance of doubt, it should also be clarified that electricity is a product. Open-Source digital manufacturing files should be considered as open-source software.
Amendment 131 #
Proposal for a directive
Recital 29
Recital 29
(29) In the transition from a linear to a circular economy, products are designed to be more durable, reusable, reparable and upgradable. The Union is also promoting innovative and sustainable ways of production and consumption that prolong the functionality of products and components, such as remanufacturing, refurbishment and repair.47. In addition, products allow for modifications through changes to software, including upgrades. When a product is modified substantially outside the control of the original manufacturer, it is considered to be a new product and it should be possible to hold the person that made the substantial modification liable as a manufacturer of the modified product, since under relevant Union legislation they are responsible for the product’s compliance with safety requirements. Whether a modification is substantial is determined according to criteria set out in relevant Union and national safety legislation, such as modifications that change the original intended functions or affect the product’s compliance with applicable safety requirements. In the interests of a fair apportionment of risks in the circular economy, an economic operator that makes a substantial modification should be exempted from liability if it can prove that the damage is related to a part of the product not affected by the modification.It should also be able to pursue remedies against the economic operator that placed the product on the market or put it into service, if it can prove that the part of the product affected by the modification was originally not in conformity with European requirements, and that this non-compliance led partially or totally to the modification. Economic operators that carry out repairs or other operations that do not involve substantial modifications should not be subject to liability under this Directive. _________________ 47 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A new Circular Economy Action Plan for a cleaner and more competitive Europe, COM/2020/98 final.
Amendment 185 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. This directive shall not apply to freeware and open-source software, unless: (a) the developer or a third-party has explicitly agreed to accept liability, for instance, as part of the provision of technical support services, either with a user, or with a manufacturer who wishes to use the software as a component in their own products. (b) the software is provided in the course of commercial activity, either by: (i) charging a price for a product; (ii) providing a software platform reliant on other services which the manufacturer monetises (iii) using personal data generated by the software for reasons other than exclusively for improving the security, compatibility or interoperability of the software.
Amendment 256 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 a (new)
Article 4 – paragraph 1 – point 17 a (new)
(17a) ‘freeware’ means proprietary software that is provided at no cost to the user, but cannot be distributed, studied, changed, improved, integrated into other products or provided as a service without the consent of the author.
Amendment 259 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 b (new)
Article 4 – paragraph 1 – point 17 b (new)
(17b) ‘open-source software’ means software distributed under a licence which allows users to run, copy, distribute, study, change and improve it freely, as well as to integrate it as a component in other products, provide it as a service, or provide commercial support for it.
Amendment 261 #
Proposal for a directive
Article 4 – paragraph 1 – point 17 c (new)
Article 4 – paragraph 1 – point 17 c (new)
(17c) ‘gross mistake’ means an action taken by the manufacturer in the course of the development of a software product that does not use the degree of care that a reasonably prudent person would, in particular through failing to apply commonly accepted best practices in the development process.
Amendment 297 #
Proposal for a directive
Article 6 – paragraph 1 – point h a (new)
Article 6 – paragraph 1 – point h a (new)
(ha) well-founded concerns that products from the same product series are defective, or that a component within the product is defective, for instance when there is evidence that a large number of consumers are experiencing the same issue with products from the same product series, or when concerns are presented by a consumer organisation.
Amendment 302 #
Proposal for a directive
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. Standalone software products that neither control objects in the physical world nor make decisions or provide advice impacting the environment, citizens health, safety, fundamental rights, economic standing or access to public services, shall not be considered defective if the following requirements are met: (a) the manufacturer of the product has responded to reports of bugs from users within a timeframe proportional to the severity of the bug; and (b) the manufacturer of the product has taken measures to address security flaws in their product or its components within a time-frame proportional to the severity of the security flaw; and (c) the manufacturer of the product has integrated features into the software in order to prevent or reduce the impact of data loss in the event of a malfunction; and (d) damage caused was not the result of a gross mistake on the part of the manufacturer;
Amendment 366 #
Proposal for a directive
Article 9 – paragraph 2 – point b
Article 9 – paragraph 2 – point b
(b) the claimant establishes that the product does not comply with mandatory safety requirements laid down in Union law or national law that are intended to protect against or reduce the risk of the damage that has occurred; or
Amendment 410 #
Proposal for a directive
Article 10 – paragraph 2 a (new)
Article 10 – paragraph 2 a (new)
2a. Where a person that modifies a product as referred to in Article 7(4) can prove that the part of the product affected by the modification was originally not in conformity with European requirements ,and that this non-compliance led partially or totally to the modification, the person shall be entitled to pursue remedies against the economic operator that placed the product on the market or put it into service. The relevant actions and conditions of exercise shall be determined by national law.
Amendment 423 #
Proposal for a directive
Article 14 – paragraph 1 – subparagraph 1 – introductory part
Article 14 – paragraph 1 – subparagraph 1 – introductory part
Member States shall ensure that a limitation period of 3 years applies to the initiating of proceedings for claiming compensation for damage falling within the scope of this Directive. The limitation period shall begin to run from the day on which the injured person became aware, or should reasonably have become aware, of all of the following:
Amendment 424 #
Proposal for a directive
Article 14 – paragraph 1 – subparagraph 2
Article 14 – paragraph 1 – subparagraph 2
The limitation period shall be 3 years for standalone software products that neither control objects in the physical world nor make decisions or provide advice impacting the environment, citizens health, safety, fundamental rights, economic standing or access to public services; and 5 years for all other products. The laws of Member States regulating suspension or interruption of the limitation period referred to in the first subparagraph shall not be affected by this Directive.
Amendment 444 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
The Commission shall by [OP, please insert the date: 63 years after the date of entry into force of this Directive], and every 5 years thereafter, review the application of this Directive and submit a report to the European Parliament, to the Council and to the European Economic and Social Committee.