New directive on liability for defective products

Directive (EU) 2024/2853 of the European Parliament and of the Council of October 23, 2024, on liability for defective products and repealing Council Directive 85/374/EEC (“Directive (EU) 2024/2853”) updates the liability regime for defective products. This update is to reflect technological advances in artificial intelligence (AI), new circular economy business models, and new global supply chains.

Directive (EU) 2024/2853 strengthens consumer protection, including access to compensation for personal injury and damage to mixed-use property (private and professional) through common rules on the liability of economic operators.

• Broadened definition of product:

The term “product” is broadened to include software, even when integrated into another movable or immovable property, and interconnected digital services that affect the safety of the product. The aim of this broader definition is to ensure consumers are protected against damage caused by defects in software and digital services, reflecting the growing importance of these components in the digital age. Directive (EU) 2024/2853 also considers digital manufacturing files as products, ensuring protection against defects that may arise during the automated production of tangible goods.

• Extension of those liable for defective products:

The directive also specifies that liability for defective products is not limited to manufacturers, but extends to importers, agents, and fulfillment service providers. Online platforms acting as distributors can be held liable if the way they present the product leads the consumer to believe that it is supplied by the platform itself. This measure aims to ensure that all economic operators involved in the supply chain are held accountable, promoting greater security and trust in the market.

• Presumed defect

To facilitate access to justice, Directive (EU) 2024/2853 introduces rules that make it easier for consumers to prove that a product is defective. If a product does not meet safety requirements or fails during normal use, it is presumed to be defective. Similarly, if a defective product causes a type of damage that is typically associated with that defect, it is presumed that the defect caused the damage. Manufacturers and other liable parties can also be sued for damage caused by their products for a 10-year period, which can be extended to 25 years for personal injury that appears over time. The deadline for taking legal action is three years from the date the complainant becomes aware of the damage, the defect, and the identity of the person responsible.

• How long are the limitation and expiry periods?
• Limitation period: The limitation period for bringing a damages action is three years from the date the injured party became—or should have become—aware of the damage, the defect, and the identity of the economic operator responsible.
• Expiry period: The right to damages expires 10 years after the product is placed on the market or put into service. The expiry period may be extended to 25 years in cases of delayed-onset personal injury.
• Deadline for transposing Directive (EU) 2024/2853

The deadline for transposing this directive into national law is December 9, 2026.

Economic operators must be aware of the new rules and obligations established in the directive to ensure better safeguarding of their responsibilities and greater market security.