Defective products: liability

KEY POINTS

Damage covered

The directive applies to damage:

• caused by death or by personal injuries,
• caused to private property.

EU Member States may set a limit for the total liability of a producer in the case of death or personal injury caused by identical items with the same defect.

Liability

A producer can mean:

• the producer of a raw material, the manufacturer of a finished product or of a component part,
• the importer of the product,
• any person putting their name, trade mark or other distinguishing feature on the product,
• any person supplying a product whose producer or importer cannot be identified.

Where two or more persons are liable for the same damage, they shall be liable jointly.

Proof of damage

A product is defective where it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:

• the presentation of the product,
• the reasonable use of the product,
• the time when the product was put on the market.

The injured person carries the burden of proof. They must prove:

• actual damage,
• a defect in the product,
• a causal link between the damage and the defect.

However, he does not have to prove the negligence or fault of the producer or importer.

Exemption from liability

A number of factors can exempt a producer from liability including if:

• they did not put the product into circulation,
• the defect appeared after the product was put into circulation,
• the product was not manufactured by them to be sold or distributed for profit
• the product was not manufactured or distributed by them for any purpose within the usual transactions and practices of their business,
• the defect is due to compliance of the product with mandatory regulations issued by public authorities,
• the defect of a component was caused during the manufacture of a final product.

When the injured person is at fault, the producer’s liability may be reduced.

Expiry of liability

• The injured person has 3 years within which to seek compensation. This period starts from the date on which the injured person became aware of the damage, the defect and the identity of the producer.
• The producer is no longer liable 10 years after the date the product was put on the market.
• No contractual clause may allow the producer to limit his liability in relation to the injured person.
• National laws on civil liability still apply.

Repeal

Directive 85/374/EEC will be repealed and replaced by Directive (EU) 2024/2853 (see summary) as of 9 December 2026.