By December 9, 2026, all EU Member States must update their product liability laws to align with the (new) Product Liability Directive (EU) 2024/2853 (“PLD”). The PLD imposes liability on manufacturers of products (and other relevant parties) for harm caused by defective products, regardless of fault. The PLD modernizes the current EU product liability framework and renders the framework more claimant-friendly (see our previous blog post). It is expected to lead to an increase in claims, primarily as a result of the following changes:
- Expanding the scope of products falling within the PLD, including bringing AI and other software into scope.
- Broader scope of recoverable damages, including psychological harm, property damage of any amount and data loss or corruption.
- Liability beyond the point of sale, holding manufacturers responsible not only for defects at the time of sale but also for those arising while the product is under their control, such as failing to provide security and software updates.
- Presumptions and disclosure obligations that ease the burden of proof for claimants. For example: (i) courts may presume defectiveness where damage results from an “obvious malfunction” during “reasonably foreseeable use”; (ii) presume causality where the product is defective and the damage is of a “kind typically consistent” with that defect; and (iii) presume defectiveness and/or causality where, despite disclosure, the claimant faces excessive technical difficulties and shows it is likely the product is defective or linked to the damage.
- Greater transparency and enforcement, including requirements for publishing any final judgment delivered by the national courts of appeal or courts of last instance in proceedings pursuant to the PLD, which could create risk of follow-on litigation.
The PLD does not apply directly in Member States. Instead, each country must transpose the PLD’s rules into national law. We are monitoring how each country implements the PLD, whether through new laws, amendments, or other measures. Although the Directive aims for full harmonization, national differences can still arise, particularly in the following areas:
- Non-material damage: The Directive leaves it to Member States to decide whether to compensate non-material harm (e.g., pain and suffering). Germany’s draft law transposing the PLD, for instance, includes such damages, while others may limit compensation to material and economic losses.
- Development risk defense: The PLD allows Member States to retain or abolish this defense, which shields producers from liability if a defect could not have been discovered given the state of scientific and technical knowledge at the time of marketing. Germany’s draft law and the Netherlands’ draft law both retain this defense, while others may restrict or remove it.
- Interaction with national law: The PLD co-exists with national tort and contract laws. Member States may integrate provisions into their civil codes or maintain separate product liability statutes, influencing how claims are brought. For example, Germany is planning to adopt a new law that replaces its existing Product Liability Act (Produkthaftungsgesetz). The Netherlands, by contrast, intends to integrate the PLD into its Civil Code rather than creating or amending a standalone statute.
The German draft also clarifies the relationship between the upcoming product liability regime and other sector-specific liability rules by excluding its application to certain medicinal products and referring those to the liability regime under the Medicinal Products Act (Arzneimittelgesetz) instead. This approach illustrates how Member States can preserve existing strict liability frameworks for high-risk sectors while implementing the PLD.
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Covington advises companies on the specific steps needed to comply with the new PLD, including forthcoming national laws transposing it. We provide practical, actionable strategies tailored to your products, risk profile, and markets, while closely tracking implementation across all EU Member States. For detailed guidance or jurisdiction-specific updates, do not hesitate to contact us.