The new European directive on liability for defective products: what are the stakes for businesses?

Adopted in October 2024, the new European directive on liability for defective products represents a significant turning point for businesses operating in the European market. By repealing the 1985 directive, the European legislator seeks to adapt liability law to today’s technological realities – software, artificial intelligence, connected products.

Having entered into force on 9 December 2024, the directive must be transposed into national laws by 9 December 2026. It retains the central principle of strict liability of the producer for damages caused by a defective product, but fundamentally modernises this regime to take account of the digital economy and new forms of innovation.

One of the most significant developments concerns the very definition of a “product”. This is no longer limited to physical goods alone: it now encompasses software, artificial intelligence systems, digital manufacturing files, as well as certain digital services integrated into a product. This choice clearly reflects the European legislator’s intention to guarantee effective protection to users in an environment where intangible functionalities occupy an increasingly central place.

In the same spirit, the directive considerably widens the circle of actors who may be held liable. Beyond the traditional manufacturer, importers, distributors, authorised representatives, logistics service providers, and even certain digital platforms are now covered. The objective is clear: to ensure that a victim is not left without a responsible party within the European Union, particularly in the context of online commerce.

The concept of compensable damage is also evolving. In addition to the physical injuries and material damage already covered, the directive now recognises compensation for medically recognised harm to psychological health, as well as the loss or corruption of non-professional data. However, damage to professional property, purely economic losses, and moral damages remain excluded from the scope of compensation.

With regard to the defectiveness of digital products, the reform introduces a notable change of approach. Under the previous regime, defectiveness was assessed at the time of placing the product on the market. Henceforth, where the manufacturer retains technical control over the product – for example through software updates or connected services – the safety of that product must be assessed throughout the period during which such control persists. Concretely, a defect may therefore appear or be revealed after commercialisation, in particular following an update or an evolution of the software.

This more dynamic approach is accompanied by a strengthening of evidentiary mechanisms. The directive introduces a system of presumptions facilitating proof of the defect and the causal link, as well as a procedure for the disclosure of evidence held by businesses, inspired by the “discovery” mechanism. These provisions aim to rebalance the relationship between manufacturers and victims, which are often in a situation of information asymmetry in disputes involving complex technologies.

For businesses, the implications are concrete. The broadening of the scope of liability and the evolution of the rules of evidence expose economic operators to a potentially higher legal risk. To address this, they will need in particular to strengthen their internal procedures for risk management, product monitoring, and technical documentation.

While the principle of strict liability remains unchanged, the 2024 directive reflects a profound transformation in the way the law apprehends products in a digital and interconnected environment. For businesses, the challenge is now to integrate this evolution into their compliance and risk management strategy, in order to anticipate the new requirements of the European framework.