EU revised Product Liability Directive: What you need to know

The product liability regime in Ireland will soon be transformed by the EU Product Liability Directive 2024/2853 (the PLD) which will apply to products placed on the EU market or put into service after 9 December 2026.

The previous Product Liability Directive, dating from 1985, introduced a legal basis (outside of contract or negligence) for natural persons to pursue manufacturers (primarily) for compensation for death, personal injury or damage to property caused by a defective product. Liability was on a ‘strict liability’ basis meaning that claimants did not have to prove fault or negligence in relation to the manufacture of the product. The PLD retains these core features and expands the scope for product liability claims with an expanded range of products in scope (notably software), damage suffered (including psychological damage and loss of data) and potential defendants. The PLD also introduces some procedural changes which will make it easier for claimants to pursue their claims.

This article answers some of the key questions for businesses to allow them to understand this potential additional area of litigation risk.  

1. What products are in scope?

The PLD will continue to apply to all tangible products. In addition, the definition of a ‘product’ will be expanded to include software, irrespective of its mode of supply or usage, covering operating systems, software updates, computer programmes and AI systems. Free and open-source software is excluded from scope in most instances.

Related services that are embedded in or connected with a product will now also be in scope provided they are necessary for the product to function and within the control of the manufacturer. Examples of such services include a health monitoring service that relies on a physical product's sensors, or a temperature control service for a smart fridge. While ‘information’ (including content such as media files or e-books) is expressly excluded, software which is subsequently integrated into a product will fall within scope of the PLD.

2. What type of damage may be compensated?

Claimants can still sue for death or personal injury, with personal injury now expressly including “medically recognised damage to psychological health”. Damage to property is included (except for the defective product itself, damage caused by a component or property used exclusively for professional purposes). Damage has been expanded to include “destruction or corruption of data that are not used for professional purposes”.

Compensation may also cover non-material losses where they can be compensated for under national law.

3. Who can be sued?

The PLD establishes a revised hierarchy of liability to ensure that there is always an EU-based party who can be pursued by a claimant. Manufacturers, including those who provide ‘related services’ or substantially modify products, remain primarily liable. If the manufacturer cannot be identified or is outside the EU, liability falls to the importers, the authorised representative and, where there is no importer within the EU or authorised representative to ‘fulfilment service providers’. Where none of these can be identified, liability falls to distributors.

Online platforms may now face distributor liability where they present a product in a way that would lead consumers to believe that the product is provided by them or by someone under their control. The recitals to the PLD indicate that distributor liability will only arise where an online platform’s role extends beyond a ‘mere intermediary’ between traders and consumers.

4. Relevant time limits

Liability can now arise for defectiveness that manifests after a product is placed on the market where the defect relates to software within the manufacturer’s control. This includes updates, upgrades or machine-learning algorithms, as well as the absence of updates to maintain cybersecurity and safety.

Claims must be made within 3 years of the claimant becoming aware of all of the following: (i) the damage; (ii) the defectiveness; and (iii) the identity of the relevant economic operator who can be held liable.

There is a backstop date of 10 years from the date the product was placed on the market for any claims, or 25 years where a personal injury was latent (i.e. not discoverable) for a longer period.

5. Disclosure obligations

New disclosure obligations which enable national courts to compel disclosure of “relevant evidence” where it is ‘necessary and proportionate’ and the claimant has established a plausible case. Similarly, claimants will have to make disclosure of “relevant evidence” for the purposes of the defendant’s defence of a claim.

These disclosure obligations fit neatly within the confines of the Irish discovery rules but are expected to represent a seismic reform for civil law jurisdictions in the EU.

6. Presumption of defectiveness and causation

In general terms, a product shall be considered defective where “it does not provide the safety that a person is entitled to expect or that is required under Union or national law”.

While claimants retain the burden of proof under the PLD, rebuttable presumptions of defectiveness and causation may arise in certain circumstances. These include: (i) failure by the defendant to disclose evidence; (ii) non-compliance with mandatory product safety requirements; and (iii) an obvious malfunction during reasonably foreseeable use of the product.

While the impact of these changes is yet to be seen, stakeholders have been critical of these provisions, claiming that they effectively shift the burden of proof onto economic operators to prove non-defectiveness.

Separately, a presumption of causation will arise where: (i) the damage is typically consistent with the defect in question, (ii) where it is likely that the product is defective, and/or (iii) where the claimant faces ‘excessive difficulties’ due to technical or scientific complexities.

Stakeholders have expressed concern over ambiguity of the phrase ‘technical or scientific complexity’ which will be a matter for the national courts to determine on a case-by-case basis by reference to the complex nature of the product, the technology used, and the data available. Unfortunately, this deference to national courts may lead to an inconsistent approach being adopted in different EU jurisdictions.

7. Defences available to economic operators

The PLD preserves a number of important defences for economic operators (subject to certain exceptions). These include demonstrating that: (i) the defectiveness that caused the damage did not exist when the product was placed on the market or put into service (or came into being afterwards); (ii) the defectiveness is due to compliance with mandatory legal requirements; (iii) the objective state of scientific and technical knowledge at the relevant time was not such that the defectiveness could be discovered (the 'development risk defence'); or (iv) in the case of a component manufacturer, the defect is attributable to the design of the product into which the component was integrated or to the instructions given by the product manufacturer.  

Key takeaways

The new regime will apply to products placed on the market or put into service from 9 December 2026. While the PLD will hopefully lead to a sophisticated reform of product liability law across the EU, we expect to see an increase in litigation in this space as manufacturers and consumers seek to test the parameters of these technological reforms.

Businesses should use this lead-in time over the next 8 months to review its supply chain contracts and ensure that it has procedures in place to achieve compliance with these increased obligations.

For tailored advice on the implications of the PLD for your product lines and distribution models, please contact our Products Team, Denise Daly Byrne (Partner), Mairead O’Brien (Partner), Nadia Skelton (Associate), Sarah-Jane McCusker (Solicitor), or your usual ALG contact.

Date published: 16 March 2026