Guidance
Documentation
The EU Product Liability Directive is the legislative framework that governs liability for damage caused by defective products within the European Union.
The original directive (85/374/EEC, adopted in 1985) has been substantially modernized and replaced by Directive (EU) 2024/2853, which was adopted on 23 October 2024 and will apply to products placed on the market from 9 December 2026 onwards.
Key Features and Changes in the New Directive:
Broader Scope:
The definition of “product” is significantly expanded and now includes not only all tangible movables, but also electricity, digital manufacturing files, raw materials, and, crucially, software—including digital and AI-based products, and digital services that are integral to a product’s function.
Expanded Definition of “Product”
The directive now applies to a much wider range of items, including:
All tangible movables (physical goods), as before
Electricity
Digital manufacturing files (e.g., 3D printing instructions)
Raw materials
Software, including:
Standalone software (not just software embedded in hardware)
Digital and AI-based products
Digital services that are essential for a product’s operation.
Inclusion of Digital Elements
Liability extends to digital products, AI systems, and smart devices, even if the defect arises from a software update or a failure to update software provided by the producer.
Digital content or services that are an integral part of a product’s function fall under the directive, closing previous loopholes where digital-only products were not covered.
Liable Parties
The new directive introduces a much wider list of liable parties—referred to as “economic operators”—than previous rules. This ensures that consumers always have an EU-based party from whom they can claim for damages caused by defective products.
Liability extends beyond traditional manufacturers to include:
Manufacturer of the Product
Any person or entity who manufactures a finished product, raw material, or a component part is primarily liable for damage caused by a defective product. The definition of “manufacturer” includes not just traditional manufacturers but also those who assemble or produce for their own use, and those who market a product under their own name or trademark.
Manufacturer of a Component
If a component part causes a defect in the final product, the component manufacturer can be held liable along with the final product manufacturer.
Importers
Importers are liable if they introduce products from outside the EU when the manufacturer is not EU-based.
Authorised Representatives
If an EU-based authorised representative acts on behalf of a non-EU manufacturer, they may also be held liable for product defects.
Fulfilment Service Providers
Entities offering warehousing, packaging, addressing, or dispatching services—without owning the product—may be liable when neither the manufacturer, importer, nor authorised representative is established in the EU.
Any Party Substantially Modifying a Product
Anyone who substantially modifies a product (such as through significant repairs, upgrades, or software updates) after it has left the manufacturer’s control and then puts it on the market can be considered a manufacturer, and thus strictly liable.
Distributors
Distributors may be held liable if:
The injured party requests the distributor to identify another liable party (manufacturer, importer, etc.) established in the EU,
And the distributor fails to do so within one month.
Online Platforms
Online platforms (marketplaces) can be liable if they:
Act in any of the other economic operator roles (such as fulfilment service provider or distributor),
Present the product or enable the transaction in a manner that would lead an average consumer to believe the product is supplied by the platform or by a trader under its authority or control.
Fail to identify a relevant EU-based economic operator upon request.
Joint and Several Liability
Two or more parties can be jointly and severally liable for the same damage, particularly in cases involving defective components, modifications, or unclear supply chain roles. This ensures the injured party always has a clear route to claim compensation, even in complex or cross-border supply chains.
Strict Liability
The regime remains strict liability—claimants do not have to prove fault, only defectiveness and the link between the defect and the damage. This applies to all products defined under the Directive, including physical goods, digital goods (like software and AI), and digital services integral to a product. Strict liability extends to a broad array of economic operators—including manufacturers, importers, fulfilment service providers, authorised representatives, those who substantially modify products, and, in defined situations, online platforms and distributors.
Defectiveness
A product is defective if it does not provide the safety that a person is entitled to expect, taking into account all circumstances such as product presentation, reasonably foreseeable use, regulatory safety requirements, and the potential for updates or learning in digital products.
Factors for Assessing Defectiveness
When determining defectiveness, all circumstances must be considered, including:
Product presentation and characteristics: Labelling, marketing, and instructions
Intended and reasonably foreseeable use: How the product is expected to be used, including foreseeable misuses
Effects of related or connected products: The foreseeable effect of other products used in conjunction, like accessories or software updates
Compliance with safety regulations: Whether the product meets all relevant safety standards and requirements
Time product was placed on the market: Safety expectations at that time, not judged with hindsight
Product recalls or interventions by authorities: These may indicate defectiveness but do not establish it automatically.
Digital and Connected Products: New Criteria
Software and AI: Defectiveness can arise from insufficient or missing software updates, predictable or unpredictable behaviour of AI systems, or cybersecurity vulnerabilities.
Post-sale modifications: Updates and changes after the product enters the market, especially when under the manufacturer’s control, can make a product defective.
Learning products: For AI-enabled products, their ability to evolve must be taken into account.
Eased Burden of Proof
The directive introduces new presumptions of defectiveness and causality when technical or scientific complexity makes proof excessively difficult and the defect or its link to damage is at least probable. Courts may also require defendants to disclose relevant evidence in their control, with safeguards for trade secrets.
The new Directive introduces several rebuttable presumptions that shift the evidentiary advantage toward the claimant. These presumptions apply in the following situations:
Failure to Disclose Evidence
If the defendant does not comply with a court order to disclose relevant evidence in their possession, the product will be presumed defective.
Non-Compliance with Safety Requirements
If the claimant can show the product does not meet mandatory EU or national safety standards designed to prevent the type of damage suffered, defectiveness is presumed.
Obvious Malfunction
If the damage is caused by an “obvious malfunction” under foreseeable use—such as a glass bottle exploding during normal handling—defectiveness is presumed without expert proof.
Technical or Scientific Complexity (“Excessive Difficulty”)
Where the claimant faces “excessive difficulties” proving defect or causation due to technical or scientific complexity, and it is at least probable there is a defect or causal link, courts may presume either or both in favour of the claimant.
Presumption of Causation
If it is established that a product is defective and the damage suffered is the kind typically arising from such a defect, the Directive presumes a causal link between the defect and the damage.
Judicial Disclosure Obligations
Courts may require the defendant to disclose relevant evidence under their control if the claimant has made a sufficiently plausible case. If the defendant refuses, the court may presume defectiveness, making it much easier for claimants to succeed.
Accessible and Understandable Evidence
The Directive requires that disclosed evidence must be presented in a manner that is accessible and understandable to claimants, which is particularly significant for complex or digital products.
Balancing Interests
Protection of Trade Secrets
Courts are required to balance disclosure obligations with the protection of business confidentiality and trade secrets. Safeguards must be in place to ensure that only essential and proportionate disclosure is ordered.
Compensation
Covers compensation for:
Death or personal injury (including psychological harm)
Damage to or destruction of property not used for professional purposes
Corruption or destruction of non-professional data
Both material and, where provided by national law, non-material losses are compensable.
Data Loss and Corruption, compensation now explicitly covers destruction or corruption of non-professionally used data, as well as costs incurred for the rescue or recovery of such data (when actually incurred).
Damages due to inadequate cybersecurity measures (e.g., hacker attacks) are included.
Claimants
Natural Persons (not limited to consumers) have the right to claim compensation.
Claims may also be brought on a collective basis or by representative bodies acting for groups of claimants.
Limitation and Expiry Periods
Claims must be made within three years from when the injured party becomes aware (or should have become aware) of the damage, defect, and the liable party.
Expiry Period (“Long Stop”):
General: 10 years from when the product was placed on the market or put into service. For cases involving latent personal injury (where harm was not immediately discoverable), the period is extended to up to 25 years.
No Financial Caps or Exclusions
The directive abolishes prior financial caps on compensation and removes minimum claim thresholds. There is no maximum limit on the amount claimable for personal or property damage. Liability cannot be contractually excluded or limited by producers or other liable parties.
No National Deviations
Member States may not adopt stricter or more lenient standards than those set by the directive, ensuring consistent protection and legal standards across the EU.
Exclusions
The directive expressly excludes:
Free and open-source software supplied outside a commercial context
Damage from nuclear accidents (covered by international conventions).