The new EU Product Liability Directive (EU) 2024/2853

Directive (EU) 2024/2853 on liability for defective products (the new PLD) repeals and replaces Council Directive 85/374/EEC (the 1985 Directive). It applies to products placed on the EU market or put into service after 9 December 2026, which is also the deadline for Member States to transpose it into national law. The 1985 Directive continues to govern products placed on the market or put into service before that date, so two regimes will run side by side for many years.

The new PLD keeps the core idea of the 1985 Directive – liability without fault for damage caused by defective products – but materially widens almost every element of it:

Although the 1985 Directive imposed liability without fault, its drafters built in a number of limits that softened its effect for producers: the defect test looked at the position when the product was put into circulation, the development risks defence was available, property claims were subject to a minimum threshold and Member States could cap total liability. In outline:

• Strict liability of the producer. Liability without fault applied to industrially produced movables (including electricity). The "producer" included the manufacturer of a finished product, component or raw material, any own-brander, and the importer into the Community, with suppliers liable as a fallback where the producer could not be identified.
• Defect. A product was defective when it did not provide the safety that a person is entitled to expect, taking all circumstances into account, including its presentation, its reasonably expected use and the time it was put into circulation. A product was not defective merely because a better product was later put into circulation.
• Defences (Article 7). The producer escaped liability if it proved that it did not put the product into circulation; that the defect probably did not exist when it did so; that the product was not made for an economic purpose or in the course of business; that the defect was due to compliance with mandatory regulations; the development risks defence (the state of scientific and technical knowledge did not enable the defect to be discovered); or, for component manufacturers, that the defect was attributable to the design of the finished product or the manufacturer's instructions.
• Damage (Article 9). Recoverable damage was limited to death and personal injury, and to damage to property other than the product itself, subject to a 500 ECU lower threshold and only where the property was of a type intended for, and mainly used for, private use or consumption. Non-material damage was left to national law.
• Time limits. A three-year limitation period ran from when the claimant knew or should reasonably have known of the damage, the defect and the identity of the producer. Rights were extinguished ten years after the producer put the product into circulation, unless proceedings had been started.
• Member State options. Member States could derogate from the development risks defence and could impose an overall cap on liability for death or personal injury caused by identical items with the same defect, of not less than 70 million ECU.
• No contractual exclusion. Liability to the injured person could not be limited or excluded by contract.

In the United Kingdom the 1985 Directive was implemented by Part 1 of the Consumer Protection Act 1987 (CPA) in Great Britain and by the Consumer Protection (Northern Ireland) Order 1987.

The 1985 Directive was amended only once, by Directive 1999/34/EC. In the recitals to the new PLD, the EU legislature describes the 1985 Directive as an effective and important instrument, but one that needed revision because new technologies (including AI), circular economy business models and global supply chains had created inconsistencies and legal uncertainty, particularly about what counts as a "product”. The recitals also record that injured persons had found it hard to obtain compensation, owing to restrictions on claims and to the difficulty of gathering evidence in technically and scientifically complex cases.

4.1 Scope and the definition of "product" (Articles 2 and 4)

A "product" now means all movables, even if integrated into, or inter-connected with, another movable or an immovable, and it expressly includes electricity, digital manufacturing files, raw materials and software.

• Software is a product irrespective of how it is supplied or used – whether stored on a device, accessed via a network or the cloud, or supplied as software-as-a-service. Developers and producers of software, including AI system providers under the AI Act, are treated as manufacturers. Information as such (for example the content of media files or e-books, or the mere source code of software) is not a product.
• Free and open-source software developed or supplied outside the course of a commercial activity is excluded. A manufacturer that integrates such software into a commercial product may still be liable for it.
• Digital manufacturing files – digital templates containing the functional information needed to produce a tangible item through automated control of machinery (for example 3D printers) – are products.
• Related services – digital services integrated into or inter-connected with a product such that their absence would prevent it performing one or more functions (for example traffic data for navigation, health monitoring, smart-fridge temperature control or voice assistants) – are treated as components where they are within the manufacturer's control. Internet access services are not related services.
• "Manufacturer's control" covers integration, inter-connection or supply of components (including software updates) that the manufacturer performs, authorises or consents to, and the manufacturer's ability to supply software updates or upgrades itself or via a third party.

4.2 Damage (Article 6)

Compensation is available to natural persons only, for:

• death or personal injury, including medically recognised damage to psychological health;
• damage to or destruction of property, except the defective product itself, a product damaged by a defective component integrated within the manufacturer's control, and property used exclusively for professional purposes (so mixed-use property is now covered);
• destruction or corruption of data not used for professional purposes, including the cost of recovering or restoring the data.

All material losses resulting from such damage are recoverable, and non-material losses (such as pain and suffering) are recoverable in so far as national law permits. The 500 ECU property threshold has gone and Member States may no longer set financial ceilings. Pure economic loss, privacy infringements and discrimination do not by themselves trigger liability under the Directive. Claims may also be brought by successors, subrogated insurers and persons acting on behalf of injured persons, including through representative actions.

4.3 Defectiveness (Article 7)

A product is defective where it does not provide the safety that a person is entitled to expect or that is required under Union or national law. The assessment is objective, by reference to the safety the public at large is entitled to expect. The non-exhaustive list of relevant circumstances is considerably longer than in 1985 and includes:

• presentation and characteristics (labelling, design, technical features, composition, packaging and instructions);
• reasonably foreseeable use (including misuse that is not unreasonable);
• the effect of any ability to continue to learn or acquire new features after placing on the market;
• the reasonably foreseeable effect of other products used with it, including by inter-connection;
• the moment the product was placed on the market or, where the manufacturer retains control, the moment it left the manufacturer's control;
• relevant product safety requirements, including safety-relevant cybersecurity requirements;
• any recall or other safety intervention by a competent authority or economic operator;
• the specific needs of the intended user group; and
• for products whose purpose is to prevent damage (such as a smoke alarm), any failure to fulfil that purpose.

A product is not defective merely because a better product, including an update or upgrade, is placed on the market. The recitals confirm that warnings cannot make an otherwise defective product safe, and that a court may find a product defective where it belongs to the same production series as a product already proven defective.

4.4 Who can be liable (Article 8)

Liability attaches to "economic operators" through a cascade designed to ensure there is always an EU-based defendant:

• the manufacturer of a defective product, and the manufacturer of a defective component integrated within the product manufacturer's control;
• where the manufacturer is established outside the EU: the importer and the manufacturer's authorised representative and, where neither is established in the EU, the fulfilment service provider (a business offering at least two of warehousing, packaging, addressing and dispatching without owning the product);
• any person who substantially modifies a product outside the manufacturer's control and then makes it available or puts it into service, who is treated as a manufacturer;
• distributors, where no EU-based economic operator can be identified and the distributor fails, within one month of a request, to identify one or its own supplier; and
• online platforms Online platforms. Online platforms are not automatically liable merely because they facilitate sales between traders and consumers. However, the Directive imports the approach developed in the Digital Services Act. Where a platform presents a product, or otherwise enables a transaction, in a manner that would lead an average consumer to believe that the product is supplied by the platform itself or by a trader acting under its authority or control, the platform may be treated in the same way as a distributor. In those circumstances, the platform can incur liability if it cannot identify a relevant EU-based economic operator in response to a request. This creates a potentially significant exposure for marketplace operators whose branding, presentation, fulfilment arrangements or customer-facing interfaces blur the distinction between the platform and the underlying seller. The practical focus is likely to fall on how the transaction appears to the average consumer rather than on the formal contractual allocation of responsibility. 

4.5 Disclosure of evidence (Article 9)

Where a claimant has presented facts and evidence sufficient to support the plausibility of the claim, the court must be able to order the defendant to disclose relevant evidence at its disposal. The recitals indicate this can include documents that must be created afresh by compiling or classifying available evidence. Defendants have a reciprocal right to seek disclosure from claimants. Disclosure must be limited to what is necessary and proportionate, taking account of the legitimate interests of all parties, including confidentiality and trade secrets, and courts may order evidence to be presented in an easily accessible and easily understandable manner. National pre-trial disclosure rules are unaffected.

4.6 Burden of proof and presumptions (Article 10)

The claimant must still prove defectiveness, damage and causation. However:

• Defectiveness is presumed where the defendant fails to disclose relevant evidence under Article 9(1); where the product does not comply with mandatory product safety requirements intended to protect against the risk of the damage suffered; or where the damage was caused by an obvious malfunction during reasonably foreseeable use or under ordinary circumstances.
• Causation is presumed where the product is defective and the damage is of a kind typically consistent with the defect in question.
• Defectiveness, causation or both are presumed where, despite disclosure, the claimant faces excessive difficulties, in particular due to technical or scientific complexity, and demonstrates that defectiveness or causation is likely. The recitals give innovative medical devices, machine learning, and links between pharmaceutical or food products and health conditions as examples, and state that a claimant need only advance arguments demonstrating excessive difficulties and need not formally prove them.
• All presumptions are rebuttable by the defendant.

4.7 Exemptions from liability (Article 11)

The 1985 defences broadly survive, with important changes. Economic operators can escape liability if they prove, among other things, that they did not place the product on the market; that the defect probably did not exist at that time; that the defect is due to compliance with legal requirements (no longer limited to "mandatory" regulations); the development risks defence (now assessed by reference to the "objective" state of knowledge, which the recitals describe as the most advanced level of accessible knowledge); the component manufacturer's defence; or, for substantial modifiers, that the defect relates to a part of the product not affected by the modification.

Critically, under Article 11(2) the "defect arose later" defence is not available where the defect is due to a related service, software (including updates or upgrades), a lack of software updates or upgrades necessary to maintain safety, or a substantial modification – in each case provided it is within the manufacturer's control. The Directive does not itself impose an obligation to supply updates.

4.8 Multiple defendants, contribution and contracting out (Articles 12 to 15)

• Economic operators liable for the same damage are jointly and severally liable, subject to national rules on contribution and recourse.
• A manufacturer integrating software from a micro or small enterprise may contractually waive its right of recourse against that software supplier.
• Liability is not reduced by the acts or omissions of third parties (for example a hacker exploiting a vulnerability), but may be reduced for the injured person's own fault (for example negligently failing to install an update).
• Liability to the injured person cannot be limited or excluded by contract or by national law.

4.9 Limitation and expiry (Articles 16 and 17)

The three-year limitation period is retained, running from awareness of the damage, the defectiveness and the identity of the liable economic operator. The ten-year expiry period now runs from placing on the market or putting into service or, for a substantially modified product, from when it is made available again after the modification. Where an injured person could not start proceedings within ten years because of the latency of a personal injury, the expiry period is extended to 25 years.

4.10 Development risks derogation, transparency and review (Articles 18 to 20)

Member States may keep existing measures excluding the development risks defence (notifying them by 9 December 2026) or introduce new ones only if limited to specific product categories, justified by public interest objectives and proportionate, following notification to the Commission and a six-month standstill. Member States must publish final appellate and supreme court judgments under the Directive, and the Commission must maintain a public database of them. The Commission will evaluate the Directive by 9 December 2030, including the availability of product liability insurance.

Many of the new concepts are undefined or loosely defined, and their meaning will be settled only through national case law and, ultimately, references to the Court of Justice of the European Union. The Commission database of appellate judgments will help, but consistency across 27 Member States will take years. Key areas to watch include the following.

With the application date imminent, businesses placing products on the EU (or Northern Ireland) market should consider the following.

Directive (EU) 2024/2853 replaces a regime that has applied, largely unchanged, since 1985. It brings software and digital services within strict liability, extends the period of exposure and gives claimants new procedural tools. Much of its practical effect will depend on national implementing laws and early court decisions. Businesses that review their products, records, contracts and insurance before the regime applies will be in a stronger position.

This guide is a general summary for information purposes only, reflects the position as at October 2026 and does not constitute legal advice. Specific advice should be sought on particular circumstances and on the law of each relevant Member State.