Product Liability and Warranty Litigation in The Netherlands

Strict product liability

Article 6:185 of the Dutch Civil Code ("DCC") imposes strict liability on the producer for damage caused by a defective product it has placed on the market. Producer within the meaning of Article 6:185 DCC has a broader meaning than just the manufacturer. The injured party must prove the damage, the defect, and the causal link between the two. As this is a strict liability regime, it is irrelevant whether the producer is at fault. However, the producer has six specific defences, as detailed in question 10, and bears the burden of proving them. A product is considered defective if it does not provide the level of safety one is entitled to expect or that is legally required.

Non-contractual liability, tort

The general basis for non-contractual liability is Article 6:162 DCC, which regulates liability on the grounds of unlawful acts (or tort). In principle, this concerns a fault-based ground for liability, but a wrongful act may be attributed to the perpetrator if the damage is the result of a cause that, according to the law or prevailing opinion, is attributable to the perpetrator. For damage for which a producer cannot be held liable under Article 6:185 DCC, recourse may be had by a claimant to Article 6:162 DCC.

Contractual Liability, fault-based

Contractual liability for defective or non-conforming products is based on Article 6:74 DCC in conjunction with Article 7:17 DCC. Under these provisions, a seller who delivers a non-conforming product is liable for the resulting damage to the buyer. This is a fault-based liability, meaning the seller can avoid liability by proving the failure to conform cannot be attributed to them. However, a seller cannot, in principle, defend himself by stating that the defect in the product was not caused by him but by the manufacturer, since the seller is accountable for its own performance under the agreement. 

Under Dutch product liability law, “product” means movable property. As a rule, the defective product must be movable to fall within this section. However, "once movable means movable for product liability": even if, through processing into another item, the product ceases to exist as an independent item, or becomes immovable in property law terms, the original producer remains liable for defects in the “once movable item”. 

The concept of a product is broad. It includes not only consumer goods but also items such as aircrafts, electricity, water, and gas. There is currently uncertainty regarding software. Under the new European Product Liability Directive 2024/2853, the concept of product will also include digital products, such as software and AI applications. “Software” is interpreted broadly: operating systems, firmware, applications, and AI systems fall within its scope, regardless of whether they are supplied via download, the cloud, or embedded in hardware.

Under statutory product liability of Article 6:185 DCC, any person who suffers damage in the form of personal injury or property damage to items that are ordinarily intended for private use and consumption (subject to thresholds/exclusions) may bring a claim against the producer.

Claims in tort under Article 6:162 DCC are likewise available to any person whose legally protected interests have been violated by an attributable unlawful act.

Under the contractual non-conformity regime of 6:74 and 7:17 DCC, the buyer may bring claims for non-conformity or breach of a warranty. 

Under strict liability, compensation is strictly limited to personal injury and damage to other items intended for private use, provided that the damage exceeds €500; there is no compensation for damage to the product itself. Liability for property damage is confined to damage suffered in the private sphere. In this respect, the regime serves a purely consumer‑protective function. The decisive factor is that the damaged item itself is intended for private use or consumption. The new European Product Liability Directive (Directive (EU) 2024/2853) will broaden the concept of compensable damage to include mental injury and data loss.

The new Directive will also expand the notion of damage. In addition to bodily injury, death, and property damage, the loss or corruption of nonprofessional data will henceforth be eligible for compensation. This includes, for example, private photographs lost due to a defective hard drive, as well as the costs of recovering or restoring them. The minimum threshold of EUR 500 for property damage is also abolished.

Where other types of loss are concerned (e.g. pure economic loss and damage to items outside the private sphere), recourse must be had to Article 6:162 DCC. In that case, and in cases of contractual liability under Article 6:74 DCC, the compensable damage is determined solely on the basis of the general rules laid down in Article 6:95 et seq. DCC. 

A product is defective if it does not provide the safety that may reasonably be expected of it, taking all circumstances into account, as stated in Article 6:186 DCC. This is not a factual criterion, nor a purely subjective one. It is a normative standard by which the court can determine the extent to which a product is defective. Article 6:186 DCC provides that the assessment of a defect must consider all circumstances, particularly: (i) the product’s presentation; (ii) the reasonably foreseeable use of the product; and (iii) the time at which the product was put into circulation. As to the first: the producer is not liable where the product is used in a manifestly incorrect or careless manner judged by objective standards (the recitals refer to “unreasonable misuse”), account also being taken of the expertise of the person or class of persons for whom the product is reasonably intended.

As regards tort, reference is made to Article 6:186 DCC. This amounts to applying the same safety benchmark as under product liability.

Under Article 7:17 DCC, a product is “defective” if it is non-conforming, meaning that it does not comply to the contract, including the safety that the consumer may expect. In the case of safety defects, liability for certain consequential damage may be channelled to the producer, but the seller remains at all times liable for damage to the product itself.

The injured party generally bears the burden of proof in product liability cases. This is allocated as follows depending on the legal basis for the claim:

Product Liability (Art. 6:188 DCC): The injured party must prove the defect, the damage, and the causal link between the two. This rule is designed to protect the producer's interests by preventing a reversal of the burden of proof. However, the producer bears the burden of proving any statutory defences, as outlined in question 10 (e.g., the development risk defence).

Tort (Art. 6:162 DCC): The general rules of evidence apply, as outlined in Article 150 of the Dutch Code of Civil Procedure (DCCP). The injured party has the burden of proving the facts and circumstances that show the defendant acted unlawfully. The defendant, in turn, must prove any facts supporting a defence.

Non-conformity (Art. 7:17 DCC): The claimant (buyer) generally has the burden of proof. However, for consumer sales, a rebuttable presumption under Article 7:18a(2) DCC shifts the burden to the seller to prove the product was conforming at the time of delivery, in case the defect appears within one year after delivery.

Courts assess product defects based on several criteria, depending on the legal grounds for the claim. 

Product Liability (Art. 6:186 DCC): Under this article, a product is considered defective if it fails to provide the level of safety a person is entitled to expect, considering all circumstances. This standard grants courts broad discretion. Key factors include: the product’s presentation, its reasonably foreseeable use and the time it was put into circulation. Similar criteria may be applied when assessing defectiveness under Article 6:162 BW.

Non-conformity (Art. 7:17 DCC): A product is non-conforming if it does not possess the qualities the buyer could reasonably expect, given the circumstances of the case. 

Article 6:187 DCC defines which entities in the product supply chain can be held liable. The term "producer" is interpreted broadly and includes:

• The manufacturer of a finished product, the producer of a raw material, or the manufacturer of a component part;
• Any person who presents themselves as a producer by affixing their name, brand, or other distinguishing mark to the product;
• Any person who imports a product into the European Economic Area (EEA) for sale, rental, lease, or other forms of distribution in the course of their commercial activities;
• Any supplier, if the producer cannot be identified, unless the supplier informs the injured party of the identity of the producer.

With the advent of the new Directive, a significant change will follow. The Directive introduces a cascading system: in the first instance, the injured party must address the manufacturer. If the manufacturer is unknown or established outside the EU, responsibility successively shifts to the importer, the authorised representative, or the fulfilment service provider. To qualify as a fulfilment service provider for liability purposes, the entity must perform at least two core activities (storage, packaging, addressing, dispatch). Postal parcel delivery services and freight transport services are expressly excluded from the definition of fulfilment service provider. Distributors come into play only thereafter, and only if they fail within one month to disclose the identity of another EU‑established economic operator or of their own distributor. Online platforms are liable only where their role goes beyond the mere passive transmission of information.

Under Article 6:162 DCC (tort), the producer is primarily liable for damage caused by a defective product, provided that fault or a cause attributable to the producer can be established. Furthermore, any party to whom the product’s defect is attributable may be held liable under Article 6:162 DCC.

Under Article 7:17 DCC, the seller is primarily liable for non‑conformity, which means that the delivered item must conform to the contract.

If several persons are liable for the same damage under Article 6:185(1) DCC, each of them is liable for the whole (Art. 6:189 DCC). Therefore, the injured party may sue each liable producer for the full amount of the damage, which protects the injured party from the insolvency risk of any single producer. The general provisions on joint and several liability apply. While so-called market share liability has been rejected in the relationship between producer and consumer, the injured party may nevertheless take the position, as against each producer, that it suffices to assert that that producer’s defective product may possibly have caused his loss.

Article 6:185 DCC grants the producer six defences. In each case, the producer bears the burden of proof for these defences; this follows directly from that provision (“unless”). The following statutory defences regarding strict liability are available to the manufacturer:

• they did not put the product on the market;
• with regard to the circumstances, it is likely that the defect that caused the damage did not exist at the time the product was put on the market or that the defect occurred afterwards;
• the product was neither manufactured by the manufacturer for sale or any form of distribution for economic purposes nor manufactured or distributed by them in the course of their professional practice or business;
• the defect was due to compliance of the product with mandatory regulations issued by the public authorities;
• the state of scientific and technical knowledge at the time the product was put on the market was not such that the existence of a defect could be discovered (“state-of-the-art defence”); and
• in the case of a component that the defect was attributable to, the design of the product in which the component was fitted or to the instructions given by the producer of the parts. 

The exhaustively enumerated instances in which the producer is not liable must be interpreted strictly. 

The defendant in a claim based on Article 6:162 DCC can defend itself by disputing that one (or more) of the requirements for an unlawful act has been met. For example, by invoking contributory fault on the part of the injured party, by demonstrating that there is no defectiveness, or that there is no causal link between the damage suffered and the product.

The seller can raise various defences against a claim under Article 7:17 DCC, including disputing non-conformity, force majeure and invoking the duty to give timely notice of defects and, relatedly, the limitation period.

The producer may not exclude or limit its liability for defective products by contract. According to Article 6:192(1) DCC, the product liability section of the DCC is mandatory law. If the producer nevertheless purports to exonerate itself, such a clause is null and void pursuant to Article 3:40(2) DCC, given the consumer-protective character of the Directive.

A warranty that concerns the core of the performance may entail that, according to the standards of reasonableness and fairness, it is unacceptable for the seller to rely on a general exclusion of liability, Article 6:248 (2) DCC. Specific limitations of general warranties are, in principle, permissible. The provisions of Article 7:17 DCC must be applied with due regard to what the parties have agreed.

In consumer sales, Article 7:17 DCC is mandatory law, meaning the seller may not include terms that limit the consumer’s rights. In B2B relationships deviation is, in principle, possible. 

Claims under Article 6:185 DCC become time-barred three years after the injured party became (or ought to have become) aware of the damage, the defect, and the identity of the producer. Ten years after the product was put into circulation, the injured party’s right to compensation lapses, Article 6:191 DCC.

These are shorter time limits than those applicable to general tort. Such claims become time-barred five years after the injured party became aware of the damage and the liable person, or in any event twenty years after the product was put into circulation, Article 3:310 DCC. It may therefore well be that a product liability claim under 6:185 DCC is time-barred or has lapsed but is not yet time-barred under tort. This is particularly important for the actual producer, because that party may be liable on both grounds.

Regarding breach of contract, article 6:89 DCC requires a creditor to lodge a complaint with the debtor within a reasonable period after discovering, or after he reasonably ought to have discovered, a defect in the performance. If the creditor fails to do so, he forfeits the right to invoke the defect. The duty to complain protects the debtor against late and unexpected complaints, enabling him to respond in a timely manner, for example by remedying the defect or limiting the damage. Claims for damages based on non‑performance become time‑barred under Article 3:310(1) DCC: five years after the creditor becomes aware of the damage and the liable person, with an absolute limitation period of twenty years from the event that caused the damage.

With respect to non-conformity under Article 7:17 DCC, the notice period for the duty to complain under Article 7:23 DCC begins to run at the moment the buyer discovered, or ought to have discovered, the non-conformity upon an examination that could reasonably be expected under the circumstances. There is no fixed statutory period. Whether notice was given within a reasonable time must be determined by weighing all relevant interests and circumstances. Article 7:23(2) DCC provides that, at the moment the notice is given (that is, the moment it reaches the seller, pursuant to Article 3:37(3) DCC), a limitation period of two years begins to run. Commercial parties may derogate from the notice requirement under Article 7:23(1) DCC and in B2C relationships, derogation is possible to the benefit of the consumer. 

The non-conformity regime of Article 7:17 DCC implies a statutory warranty obligation. If the good complies to the contract, there is conformity, if not, there is non-conformity. The expectations the buyer may have must be assessed at the time the sales contract is concluded; whether the good meets those agreed expectations must then be assessed at the time of delivery. This does not, however, preclude a subsequently occurring defect from constituting non-conformity if, at the time of delivery, the buyer could assume that the defect in question would not arise within a certain period after the sale, yet the defect manifested itself earlier.

A breach of contract or breach of a warranty constitutes a failure by the seller to perform what he agreed with the buyer, with the result that the buyer may invoke contractual remedies. In that case the buyer is, in principle, entitled to all statutory remedies for non‑performance (breach of contract): specific performance, rescission, and damages. If a warranty is also regarded as a representation by the seller within the meaning of Article 6:228 (1)(a) DCC, the disappointed buyer may additionally seek annulment or modification of the contract on the ground of mistake. 

Under Dutch law, punitive damages are not available.

The principle of full compensation underlies Dutch liability law. This principle entails, on the one hand, that injured parties cannot receive more than the actual loss suffered, leaving no room for punitive damages. On the other hand, it entails that no less may be compensated than the actual loss suffered.

An important principle of civil procedural law is that the parties to the proceedings must present all information relevant to the court’s decision fully and truthfully. This principle is laid down in Article 21 DCCP and is also referred to as the duty of truthfulness and completeness.

Under Article 22 DCCP, the court may order the parties to clarify certain assertions or to submit specific documents. Whether the court exercises this authority is left to its discretion in managing the proceedings.

Article 194 DCCP grants a party to a legal relationship, without court intervention and subject to the conditions laid down by law, a right to inspection of certain data vis-à-vis the person who possesses it. The purpose of this right of inspection is to obtain clarification regarding facts that are not yet acknowledged or are disputed, or to further determine one’s legal position in an existing or potential dispute. The right of inspection may, among other things, be exercised to obtain information in connection with (contemplated) negotiations or the taking of evidence in pending or potential proceedings.

Article 195 DCCP further empowers the court to determine the conditions, the manner, and the time limit within which inspection must be provided.

Documents which are commonly disclosed: 

• Technical specifications and design documentation; 
• Testing and safety reports, including internal quality‑control records; 
• User manuals, packaging materials, and warnings (relevant in cases of presentation defects).

The EU encourages the collective resolution of product liability claims, a practice for which the Netherlands has a long-standing tradition. Since 2020, The Dutch Act on Redress of Mass Damages in a Collective Action (WAMCA) and Article 3:305a DCC have enabled collective actions for damages, which are now frequently used in product liability matters.

The process under the WAMCA generally proceeds as follows:

1. Before commencing a collective action, a representative claim organisation (hereinafter: "organisation") must make a reasonable attempt to settle its claim with the potential defendant. If no settlement is reached the organisation sends a summons to the party it believes to be causing the damage. The person who receives the summons is the defendant. The organisation sends the summons to the court registry and registers the summons in the Central Register for Collective Claims.
2. Before the court hears the case, other organisations have three months to file their own collective claim for the same event. 
3. If there are multiple organisations, the court will appoint the organisation it considers most suitable as the “Exclusive Representative”. That organisation will then be allowed to conduct the proceedings on behalf of the claimants. If no organisations meet the legal requirements, the proceedings will be discontinued.
4. The Exclusive Representative notifies interested parties of the proceedings, who can then choose to be bound by the outcome (opt-in) or not (opt-out), depending on the applicable regime. 
5. A (public) hearing will follow. The parties may negotiate a collective settlement at any stage. For the settlement to be binding, it must be approved by the court, which assesses its reasonableness and may require amendments. A second opt-out is available for interested parties who disagree with the approved settlement.
6. If the case is not withdrawn or settled, the court will issue a final judgment, which may allow the collective claim in whole or in part, or dismiss it.
7. If the Exclusive Representative or the defendant(s) disagree(s) with the ruling, they may, under certain conditions, lodge an appeal with the Court of Appeal. After the appeal ruling, appeal is possible before the Supreme Court.

Product liability cases are usually funded by the claimants themselves. Individual injured parties may qualify for legal aid or be covered by their legal expenses insurance. Manufacturers and other professional parties are generally insured.

Representative organisations increasingly rely on third‑party funding for their collective claims. To date, third parties have financed nearly all collective damages actions brought under the WAMCA. Regulation of third-party litigation funding in the Netherlands is limited to admissibility criteria and the principles set out in the Claim Code, which can serve as an important point of reference.

The basic rule of civil procedural law is that the party found to be in the wrong is ordered to pay the costs of the proceedings, as stated in the first sentence of Article 237(1) DCCP. In practice, this basic rule is understood to mean that the party that is largely unsuccessful is also ordered to pay the costs. Which party is to be regarded as the largely unsuccessful party is generally determined by comparing the claim as set out in the writ of summons with what is ultimately awarded in the decision.

The amount for which the losing party is ordered is determined in the judgment, Article 237(3) DCCP. The party ordered to pay the other party’s costs must reimburse that party’s attorney’s fees, witness fees, expert costs, and the so‑called disbursements, which are the court registry fees and bailiff’s costs. A party cannot be ordered to pay more than these costs. Attorney’s fees are generally calculated in accordance with the so‑called “liquidation rate”. This amount is almost always considerably lower than the actual attorney’s fees incurred.

District Court of Midden-Nederland 8 January 2025 and 26 March 2025 (ECLI:NL:RBMNE:2025:10 and ECLI:NL:RBMNE:2025:10:1209).

In early 2025, the District Court of Midden‑Nederland issued two interim decisions in a collective action under the WAMCA concerning permanently implanted contraceptive devices. A consumer foundation sued the product’s manufacturer on behalf of individuals implanted in the Netherlands, seeking general and special damages for alleged defects. In the first decision, the court held that it had international jurisdiction, the WAMCA applied, the foundation was admissible, and Dutch law governed. In the second decision, the court set practical directions for opt‑in and opt‑out. The proceedings are ongoing.

The adoption of the new EU Product Liability Directive (EU) 2024/2853) will modernise a 40‑year‑old system and aligns it more closely with today’s digital, global, and circular reality. 

For businesses, this means they must account for broader liability risks, more complex supply chains, and stricter evidentiary rules. The tiered regime provides guidance but demands careful contractual arrangements and supply‑chain governance. New product categories such as software and related services also require closer cooperation between legal and technical teams. 

Although the rules will only apply to products, or substantially modified products, placed on the market from 9 December 2026, companies should still plan ahead in good time. This may lead to adjustments in contracts and terms and conditions, in combination with insurance coverage. Moreover, software suppliers and AI companies, for example, should start preparing now.