Another example of a legislative amendment whose wording is too complex for businesses

The Estonian Chamber of Commerce and Industry considers it important that laws be written clearly and simply. In that case, companies can understand their obligations and responsibilities without a lawyer's help, but unfortunately we often find examples of proposed legislative amendments whose wording is too complex. For instance, we recently found several such examples in a draft act amending the Law of Obligations Act to transpose the Product Liability Directive.

For example, in the draft act transposing the Product Liability Directive, the range of companies liable for a defective product is set out in ten subsections, with repeated cross-references between them. For example, subsections 9 and 10 of one provision are worded as follows:

(9) If the economic operator established in the European Union referred to in subsections 1 and 3 or 6–7 of this section cannot be identified, the distributor of the product shall be liable for damage caused by a defective product if:

1) the injured person requests the distributor to provide information about the economic operator referred to in subsections 1 and 3 or 6–7 of this section or the person who supplied the product to the distributor; and

2) the distributor fails to provide the information referred to in clause 1 of this subsection within one month of receiving the relevant request.

(10) The provisions of subsection 9 of this section shall also apply to a provider of an online platform as defined in point (i) of Article 3 of Regulation (EU) 2022/2065 of the European Parliament and of the Council on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) (OJ L 277, 27.10.2022, pp. 1–102), who is not the liable economic operator but who enables a consumer to conclude a contract with a trader concerning a product by means of distance communication, if the average consumer could have understood that the product was offered by the online platform itself or by a person under its authority or control.

The wording does not make clear exactly when the distributor's liability arises. Although the purpose of the provision is explained in the explanatory memorandum, it is difficult to ascertain it unambiguously from the text of the law.

When the wording of a law is complex and the meaning of a provision becomes clear only through several cross-references, it is difficult for companies to assess when an obligation arises for them or when they are liable. Such lack of clarity also creates legal uncertainty.

We therefore asked the ministry to word the provision referred to more clearly, without multiple cross-references. We also asked it to review the wording of the entire draft act and simplify it where possible.