What is the Product Liability Directive?
The new Product Liability Directive – Directive (EU) 2024/2853 (hereinafter referred to as ‘PLD’) – establishes the legal framework for rules on the liability of economic operators for damage caused to natural persons by defective products. It also regulates the compensation for such damage. This is a revision of Directive 85/374/EEC, which will be repealed with effect from 9 December 2026.
To which products does the PLD apply?
The PLD applies to products that are placed on the market or put into service after 9 December 2026. A product is defined as any movable item, even if its is integrated into or connected to another movable or immovable item. This includes, among other things, electricity, digital manufacturing files and raw materials.
Is ‘software’ covered by the new PLD?
Yes, the PLD explicitly applies to software, with the exception of free and open-source software that is developed or supplied outside the course of a commercial activity.
What are the main changes in the PLD compared to the current Directive 85/374/EEC?
The PLD contains the following key changes and tightening of requirements for economic operators compared to the existing legal framework:
- Expansion of the definition of ‘product’;
- Expansion of the group of parties subject to liability;
- Introduction of an obligation for economic operators to disclose evidence;
- Easing of the burden of proof for injured parties;
- Expansion of compensable damages;
- Elimination of maximum liability limits.
Who bears the burden of proof in the event of damage?
In principle, the injured party as the claimant bears the burden of proof. They must prove the defectiveness of the product, the damage suffered and the causal link between the defectiveness of the product and the damage suffered.
However, the PLD provides for a reduction in the burden of proof for the claimant in terms of proving defectiveness and causality. Accordingly, a fact, e.g. the defectiveness of the product, is presumed under certain conditions specified in the PLD. As a result, the liable economic operator, as the defendant, must rebut this presumption. If it succeeds in doing so, the presumption is rebutted and the claimant must provide full proof.
What is the current status of the implementation of the PLD?
Member States must bring into force national laws, regulations and administrative provisions necessary to comply with the PLD by 9 December 2026. On September 11, 2025, the German Federal Ministry of Justice and Consumer Protection published a draft bill for the Modernization of Product Liability Law to implement the provisions of the PLD (available at https://www.bmjv.de/SharedDocs/Downloads/ DE/Gesetzgebung/RefE/RefE_Produkthaftung.pdf) as well as related FAQ (available at https://www.bmjv.de/SharedDocs/Downloads/DE/Gesetzgebung/FAQ/FAQ_RefE_Produkthaftung.html) (as of October 2, 2025).
What should companies do now?
In view of the stricter liability conditions under the PLD, companies should review their risk prevention and product compliance strategies and systems at an early stage and adapt them if necessary, as well as establish new systems in order to be able to meet the new requirements such as disclosure obligations.