The Regulatory Function of the New Product Liability Directive

Abstract The year 2024 marked a turning point for EU delict law, as the EU adopted a new Product Liability Directive to replace its 1985 predecessor. The new Directive, however, does more than modernise product liability law. It also reflects a deeper shift in how the EU uses private law as a tool of governance. While doctrinal commentary has largely treated the Directive as a remedial private-law instrument, this article argues that it also pursues regulatory functions. In that sense, it reflects the increasingly blurring boundary between private and public law, a development already noted in European legal scholarship. This article contributes to that debate in three ways. First, it shows how that regulatory dimension is expressed through the Directive’s objectives, namely the internal market, innovation, the circular economy and private enforcement. Second, it argues that those objectives are not relevant in every dispute, but only where particular provisions giving effect to them are applied. Third, it proposes a three-step test for determining when regulatory objectives are relevant in a given dispute and examines the consequences that follow: where this is so, those provisions should be interpreted differently from classic private-law provisions, through a forward-looking reading that advances those regulatory aims.