Product Liability and Warranty Litigation in Belgium

Belgium maintains a distinct statutory product liability regime that imposes strict liability on the producer for damage caused by a defect in the product, now integrated into Book 6 of the Civil Code (art. 6.43 new Civil Code). 

A “product” means any tangible movable property, even if incorporated into another movable or immovable property, or if it has become immovable by destination. Electricity is considered a product (art. 6.42 new Civil Code). Software is generally considered to be a product if it is incorporated in a material carrier, but not if it is download or made available as a service.

Book 6 sets the producer’s strict liability for damage to persons and eligible property; it does not change general standing rules. As the regime covers “damage to persons,” it permits claims for personal injury, which in Belgian law can be pursued by successors/estate or eligible relatives consistent with general rules; art. 6.51 new Civil Code confirms that personal injury includes moral harm.

Recoverable damages include damage to persons, expressly including moral (non‑material) damage, and—subject to conditions—damage to property; damage to the defective product itself is excluded. Property damage is recoverable only for goods normally intended for private use and used mainly for private purposes by the injured party, and is subject to a €500 deductible (art. 6.51 new Civil Code). 

A product is defective if it does not provide the safety which a person is entitled to expect, considering all circumstances, notably: (1) presentation; (2) normal or reasonably foreseeable use; and (3) the time it was put into circulation. A product is not defective solely because a later, improved product is placed on the market (art. 6.45 new Civil Code). 

The injured party bears the burden to prove damage, the defect, and the causal link between the defect and the damage (art. 6.47 new Civil Code).

Shifting the burden of proof may stem from general rules of procedural law.

Courts assess “safety legitimately expected” considering presentation, foreseeable use, and time of circulation (art. 6.47). While Book 6 does not enumerate regulatory breaches as an independent criterion, conformity with mandatory public rules can furnish a defense (art. 6.48(d)), which indicates regulatory context is materially relevant to defect analysis and defenses.

• The “Producer”, which includes manufacturers of finished products, components, and raw materials, and anyone who presents as producer by affixing their name/brand/mark (art. 6.43). 
• Anyone who imports a product into the EU for sale or distribution is legally treated as the producer and bears the same liability (art. 6.44).
• A supplier of the product that caused the damage is considered the producer — and thus liable —when:
  • For EU made products, the producer cannot be identified, unless the supplier informs the injured party, within a reasonable period of time, of the identity of the producer or of the person who supplied the product to the supplier;
  • For imported products, the importer cannot be identified, even if the name of the producer is indicated, unless the supplier informs the injured party, within a reasonable period of time, of the identity of the importer or the person who supplied the product to the supplier (art. 6.44 new Civil Code).

When several persons are liable for the same damage under the product regime, there is joint and several liability, without prejudice to contribution rights (art. 6.49 new Civil Code).

The producer is not liable if it proves: (a) it did not put the product into circulation; (b) the defect did not exist when it was put into circulation or arose later; (c) the product was neither made for sale/other economic distribution nor made/distributed in the course of business; (d) the defect results from compliance with mandatory public regulations; (e) the “development risks” defense—state of scientific and technical knowledge at the time did not permit discovery of the defect; or (f) for a component/raw material producer, the defect is due to the design of the final product or instructions of its producer (art. 6.48).

Contractual clauses cannot limit or exclude the producer’s liability vis‑à‑vis the injured person (art. 6.50 §1). 

The producer’s liability may be limited or waived where the damage is caused jointly by a defect in the product and by the fault of the injured person or of a person for whom the injured person is responsible (art. 6.50 §2). 

Without prejudice to rights of recourse, the producer’s liability shall not be limited or excluded in relation to the injured person where the damage is caused jointly by a defect in the product and by the intervention of a third party (art. 6.50 §2). 

There is a 10‑year long‑stop: the right to obtain compensation extinguishes 10 years from the date the producer put the product into circulation, unless judicial proceedings under the product liability chapter were instituted within that period (art. 6.52 §1). The action is time‑barred after 3 years from when the injured person should reasonably have had knowledge of the damage, the defect, and the identity of the producer (art. 6.52 §2). There is no separate, longer period for death under the strict product liability statute, and the ten‑year long‑stop still applies.

Yes, the product liability chapter preserves the possibility of other contractual or extra‑contractual claims (art. 6.53). 

Belgian law recognises two core implied warranty frameworks that commonly feature in product liability cases:

• Warranty against hidden defects: Under art. 1641 et. seq. old Civil Code, in all sales, the seller is bound by the warranty for hidden defects in the item sold that render it unfit for its intended use, or that diminish its use to such an extent that the buyer would not have purchased it, or would have paid a lower price for it, had they been aware of the defects. 
• Legal guarantee of conformity in consumer sales: In B2C sales, goods must conform to the contractual description and quality and meet objective conformity criteria expected of goods of the same type, including fitness for normal purposes, durability, safety, and the provision of accessories, instructions, and updates as reasonably expected (art. 1649ter et. seq. old Civil Code).

• Warranty against hidden defects: The buyer has the choice of returning the item and receiving a refund, or keeping the item and receiving a partial refund, as determined by the court (Art. 1644). If the seller was aware of the defects in the item, he is liable, in addition to refunding the price received, for all damages and interests owed to the buyer (Art. 1645).  If the seller was unaware of the defects in the item, he shall only be liable for refunding the price and reimbursing the buyer for the costs incurred in connection with the sale (Art. 1646). Professional sellers are presumed to know the defects and can hardly avoid liability.
• Legal guarantee of conformity in consumer sales: In addition to damages, if applicable,
  • The consumer is entitled to have the goods repaired or replaced free of charge (at the consumer's choice, but depending on what is possible and reasonable). 
  • If repair or replacement is impossible or would entail disproportionate costs for the seller, the consumer is entitled to demand a price reduction or the rescission of the sales contract.
  • The consumer may directly demand a price reduction or rescission of the sales contract when: 
    • the seller refuses to repair or replace the goods;
    • a defect remains despite the seller's attempt to repair or replace the goods;
    • the defect is so serious that it justifies an immediate price reduction or rescission of the sales contract;
    • the seller has stated or it is clear from the circumstances that the seller will not bring the goods into conformity with the contract by repair or replacement within a reasonable time or without significant inconvenience to the consumer (art. 1649quinquies of the old Civil Code).

In consumer contracts, unless proven otherwise, any lack of conformity that becomes apparent within two years of delivery of the consumer goods is presumed to have existed at the time of delivery.

No, punitive damages are not recoverable under Belgian law.

Belgium follows the principle of full compensation as codified in art. 5.86 new Civil Code, which aims to restore the injured party to the position they would have been in had the contract been properly fulfilled. Only damage that the parties could reasonably have foreseen at the time of concluding the contract shall be compensated, unless the non-performance results from the debtor's intentional misconduct (art. 5.87 new Civil Code).

Nonetheless, the parties may agree in advance that, in the event of attributable non-performance, the debtor shall be liable to pay a lump sum or to provide a specific service as compensation. In such cases, the other party shall not be awarded higher or lower compensation. However, if the compensation clause is manifestly unreasonable, the judge may reduce it (art. 5.88 new Civil Code).

Product liability litigation in Belgium follows the general rules of civil procedure.

Each party must produce the evidence on which it relies (art. 870 Judicial code). 

Where there is serious and specific evidence that a party or third party is in possession of a document containing evidence of a relevant fact, the judge may order production of this document or a certified copy thereof (art. 877 et seq. Judicial code). “Fishing expeditions” are not allowed.

In exceptional circumstances, the judge may determine who bears the burden of proof when the application of the rules set out above would be unreasonable.

Belgium has a class action (collective redress) regime allowing qualified representative entities—such as accredited consumer organizations or certain public bodies—to sue an “enterprise” on behalf of consumers and to seek compensatory relief (art. XVII.35 et. seq. Code of Economic Law). Product‑related consumer harm (e.g., injuries or losses caused by defective consumer products) can fall within its scope when brought against an enterprise.

Key features:

• The action is filed by a qualified representative before the Brussels Enterprise Court. The court first rules on admissibility, defines the class, and determines the participation model.
• The court chooses between opt‑in and opt‑out for the class. In practice:
  • An opt-out system is to be preferred where there is a large number of claimants who suffer  minimal financial damage. An opt-in system is to be preferred where it is impossible to estimate the number of potential claimants or where the kind of damage requires the active participation of the claimant.
  • For consumers domiciled in Belgium, the court may order either opt‑in or opt‑out.
  • For non‑resident consumers, participation is generally opt‑in.
• After the class is defined, a publication/notification phase opens a participation window. A settlement can be negotiated and submitted for court approval, or the case proceeds to judgment. The approved outcome binds class members per the ordered participation model.
• The regime is open to consumers and to small and medium enterprises, for claims against enterprises. It requires a qualified representative (individual consumers or small and medium enterprises cannot a class action).

Litigation funding is not prohibited but funding is not generally used in Belgium.

The party that loses a case before the court will be liable to pay legal fees, such as the fees of the bailiff, the fees of experts whose opinions were required to substantiate the claim and the statutory part of its attorneys’ fees. The attorneys’ fees are capped to an amount of EUR 23.546,51 for claims exceeding EUR 1 million. In exceptional cases, the court can gran the absolute maximum amount of recoverable attorneys’ fees of EUR 47.093,02.

In a March 2024 ruling, the Belgian Court of Cassation held that when a victim bases their claim on the fact that a defective product was put into circulation and caused damage, the only applicable liability regime is the strict liability system established by the Act of 25 February 1991 on liability for defective products (i.e., the law that applied before the new Civil Code provisions on product liability). 

The Court reiterated that once a case falls within the scope of the 1991 Act, that Act applies exclusively. As a result, manufacturers and suppliers cannot be held liable under general tort law for damage arising from a product defect. Common law (e.g., Article 1382 former Civil Code / Book 6 new Civil Code) may still be used only if the alleged liability stems from a cause other than the defectiveness itself (for example: Proven fault by the manufacturer distinct from the product defect such as misleading information, separate negligent conduct or contractual breaches unrelated to the product’s defective condition).

In our view, this reasoning applies mutatis mutandis to the new product liability rules now incorporated into the new Civil Code.

EU level: 

Yes, significant legislative reforms are underway in the European Union that will substantially impact product liability laws, particularly concerning emerging technologies such as software, artificial intelligence (AI), and connected devices. The most notable development is the adoption of the new EU Product Liability Directive (Directive (EU) 2024/2853), which aims to modernise the existing framework to address the complexities introduced by digitalisation and AI. 

Key Changes introduced by the new EU Product Liability Directive include:

• Expanded Definition of "Product": The directive explicitly includes software (both standalone and integrated), digital files (e.g., for 3D printing), and AI systems within the scope of product liability. This inclusion ensures that defects in digital products can lead to liability claims. 
• Inclusion of Additional Economic Operators: Liability is extended beyond traditional producers to include authorised representatives, importers, fulfilment service providers, and, under certain conditions, online marketplaces. This change reflects the evolving nature of supply chains and the role of various intermediaries in product distribution. 
• Recognition of Software Updates and Cybersecurity: Companies can be held liable for damages resulting from missing or inadequate software updates and insufficient cybersecurity measures. This provision underscores the importance of maintaining digital products post-sale.
• Extended Scope of Responsibility: While under the current law, the state of scientific and technical knowledge at the time when the producer put the product into circulation is decisive the producer must consider later changes if the products remain within its control which for example is the case if he provides regular software updates for the product. 
• Extended Scope of Recoverable Damages: The directive broadens the types of compensable damages to include data loss or corruption, reflecting the value and importance of digital assets.
• Facilitated Evidence Disclosure: Courts may order defendants to disclose relevant evidence under their control when a claimant has presented a plausible case. This measure aims to address information asymmetries between consumers and producers.
• Adjusted Burden of Proof: In cases involving complex technologies, the directive allows for a presumption of defectiveness and causality if proving these elements is excessively difficult for the claimant, provided that the defect and the causal link are likely.
• Extended Limitation Periods: The long-stop period for bringing claims is extended from 10 to 25 years in cases involving latent personal injuries, acknowledging that some harm may manifest long after product use

These reforms are particularly pertinent to sectors involving AI and digital products. Producers and developers of AI systems must now consider the potential for liability arising from algorithmic decisions, lack of transparency, and the need for ongoing updates and monitoring.

EU Member States are required to transpose the new Product Liability Directive into national law by 9 December 2026. Businesses should proactively assess their product liability exposure, particularly concerning digital and AI-enabled products, and implement necessary compliance measures.

Belgian level:

New draft bill inserting Book 7, ‘Special Contracts,’ into the Civil Code, which will in 1 to 2 years change the Civil Code provisions on the sale of goods. Consumer-related provisions include (i) a unified regime replacing the distinction between visible and hidden defects; (ii) delivery deadlines; and (iii) definitions for digital content, digital services and durable media. The Council of State, in its opinion of 28 April 2025, highlights concerns about legal clarity (incl. overlap with the Code of Economic Law), coherence with EU law (in terms of terminology), and the need to revise or clarify many provisions before adoption.