Seite - 48 - in Austrian Law Journal, Band 1/2019

ALJ 2019 Peter Egger et al 48 the risks inherent in modern technological production”73, the formal criteria of the technical mode of transmission or distribution does not justify different outcomes in liability.74 In other words: Why should software purchased on a physical medium constitute product liability but not software downloaded by data transmission? The inclusion of electric energy in Art. 2 of Directive 85/374/EEC75 shows that its legislator was aware of the problem of non-physical goods. However, the explicit qualification of energy as a product within the meaning of the Directive does not force a reverse conclusion to the effect that non-physical goods other than electricity have to be excluded from the scope of application.76 Instead, it should be concluded from the explicit reference to energy that the definition of a product does not preclude a teleological interpretation of the Directive. In 1984, the European legislator expressly mentioned energy as the only incorporeal good which was of relevance at the beginning of the 1980s - simply because it was produced on an industrial scale and sold in large quantities to consumers. It is submitted that in case the Directive were rewritten today, software would likely be explicitly mentioned alongside electric energy.77 In other words: There are convincing reasons to either interpret the requirement of “corporality” in cases of carrierless data transmission from a teleological viewpoint or to apply product liability to software in analogy to energy.78 Even if the question whether the Product Liability Directive applies to software can be clarified, the extent of liability remains open. For example, it is unclear whether the software producer is liable for damages on the end product.79 In general, personal injury and damage to any item of property other than the “end product” (e.g. a self-driving car) itself have to be compensated.80 If the software is qualified as the defective product, and the end product is qualified as a separate object, the software producer’s liability for damage on the end product could be positively assumed.81 However, this interpretation would also entail that a software producer’s liability would be stricter than the liability of an end producer who developed his own software as part of the end product.82 It remains to be seen whether new provisions will be adopted to regulate product liability specifically for smart products. However, in the light of the above mentioned examples, new legislation is not necessary.83 It is possible to interpret the existing legal framework in a way that allows adequate solutions for questions relating to smart products. Such an approach is well 73 Recital 2 of Directive 85/374/EEC. 74 Cf. KOZIOL, APATHY AND KOCH, ÖSTERREICHISCHES HAFTPFLICHTRECHT III B, at para 137 (3rd ed. 2014); Larcher, Medizinprodukte-Software: Abgrenzung und Produkthaftung, 25 RECHT DER MEDIZIN 134 (2018). 75 Sec 4 PHG. 76 Cf. Wagner, Sec 2 ProdHaftG, in MÜNCHENER KOMMENTAR ZUM BGB: BAND 6, para 20 (Habersack ed., 7th ed. 2017). 77 Cf. Wagner, supra note 76; Förster, Sec 2 ProdHaftG, in BECKOK BGB, para 24 (Bamberger, Roth, Hau and Poseck ed., 47th ed. 2017). 78 Horwath, supra note 69; Larcher, supra note 74; Wagner, supra note 76; Förster, supra note 77; dissenting Rabl, supra note 72, at para 54. 79 Cf. Koziol, Apathy and Koch, supra note 74, at para 97. 80 See a judgment of the Austrian Supreme Court (abbreviated OGH): OGH 11.11.1992, 1 Ob 644/92. Cf. also Koziol, Apathy and Koch, supra note 74, at para 96; Harnoncourt, Haftungsrechtliche Aspekte des autonomen Fahrens, ZEITSCHRIFT FÜR VERKEHRSRECHT 550 (2016); Harnoncourt, Haftungsrechtliche Aspekte des autonomen Fahrens, in AUTONOMES FAHREN UND RECHT 109, 118 (I. Eisenberger, Lachmayer and G. Eisenberger ed., 2017). 81 Cf. Koziol, Apathy and Koch, supra note 74, at para 96 et seq. 82 Cf. Wagner, Sec 1 ProdHaftG, in MÜNCHENER KOMMENTAR ZUM BGB: BAND 6, para 12 (Habersack ed., 7th ed. 2017). 83 This conclusion is also reached by the Commission’s Evaluation of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products; cf. SWD (2018) 157 final and COM (2018) 246 final 2.