The Revised EU Product Liability Directive: State of Play Across EU Member States and Evolving Risk Landscape

Background

The EU PLD represents a landmark revision of the original Product Liability Directive of 1985 (see Jones Day's publications "Reversal of Burden of Proof Under Proposal for a New EU Product Liability Directive" and "Radical Changes to Europe's Product Liability Rules Adopted"). The revised directive, which entered into force on December 8, 2024, applies to products placed on the market or put into service after December 9, 2026. Products placed on the market or put into service before this date remain subject to the old regime. However, any substantial modification or update after this date may bring a given product within the scope of the EU PLD.

Implementation Status and Maximum Harmonization

In a significant departure from the minimum harmonization approach of the original, 1985 Product Liability Directive, the EU PLD is a maximum harmonization instrument. This means that Member States are not permitted to maintain or introduce provisions that are more or less stringent than those set out in the EU PLD, except where the directive explicitly provides otherwise. In practice, however, the implementation process reveals the potential for material divergence in interpretation and application.

As of June 2026, draft transposition bills have been published in Germany, Finland, the Czechia, Slovakia, Lithuania, Croatia, the Netherlands, Denmark, Poland, and Sweden. Hungary is the only Member State that has already adopted the EU PLD transposition legislation.

The EU PLD is expressly designated as relevant to the European Economic Area ("EEA") and is currently under consideration for incorporation into the EEA Agreement. Accordingly, the regime is also expected to become relevant in Iceland, Liechtenstein, and Norway.

Publicly available (draft) acts across the European Union show notable divergences that could create additional material risks for businesses operating in different jurisdictions. While several jurisdictions have closely mirrored the EU PLD text, others have introduced subtle but potentially significant variations in their transposition.

Key Issues and Risks Emerging Across Jurisdictions

Burden of Proof. While the EU PLD nominally preserves the claimant's burden of proving defectiveness, damage, and causation, it introduces rebuttable presumptions that might significantly erode this principle in practice. Although the EU legislator seemingly never intended to reverse the burden of proof, some Member States, for instance, Sweden, interpret the presumptions as a "de facto" reversal of the burden of proof. As a result, manufacturers of technically complex products, such as pharmaceuticals, medical devices, AI-enabled products, and software, will have to prove their products' safety in court without the claimant first having to prove the defect. In this way, the new regime increases liability exposure for manufacturers, including in connection with such hyper-regulated products as pharmaceuticals and medical devices, whose safety must be demonstrated before they can be made available on the market.

Key concepts underpinning the presumptions—such as "obvious malfunction," "reasonably foreseeable use," and "excessive difficulty"—remain undefined in the EU PLD and are left to national discretion. Sweden's draft bill illustrates the resulting ambiguity: It requires prior evidence disclosure before the "excessively difficult" presumption applies but appears to allow the "obvious malfunction" presumption even when the malfunction is disputed. Finland takes a similar approach, clarifying that a prior discovery request is not mandatory but may strengthen a claimant's case. Thus far, most Member States do not further define these concepts, leaving interpretation ultimately to the courts and established legal principles.

Evidence Disclosure and Safeguards. In relation to products, the EU PLD introduces a new evidence disclosure mechanism allowing claimants to obtain court-ordered disclosure of relevant evidence that is at the defendant's disposal, so long as the claimant can present facts "sufficient to support the plausibility of the claim for compensation." Yet the concept of "plausibility" is left undefined, again creating significant interpretive uncertainty. Comparable disclosure thresholds already exist in a regulatory context under other examples of EU digital legislation, such as the Artificial Intelligence Act (Regulation (EU) 2024/1689).

This overlap may result in companies facing requests for substantially similar evidence under different legal regimes, each applying distinct standards. In some Member States, for instance, the Netherlands, the draft bill has raised questions about whether existing procedural safeguards are sufficiently robust to protect commercially sensitive and confidential information in practice. In particular, defendants may be forced to disclose commercially sensitive or confidential information during litigation. Safeguards provided by Dutch law to protect sensitive information (e.g., on trade secrets or legal privilege) do not apply automatically or are insufficiently robust, thus creating risks for businesses.

Notion of Damages. Reflecting the risks of the digital age, the EU PLD significantly broadens the types of compensable harm. Whereas the old regime focused primarily on physical injury and tangible property damage, the new framework includes compensation for psychological harm and destruction of personal data. This will not change much in legal systems where such principles already belong to the national liability regimes. For example, damage associated with psychological harm has long been recognized in France and Italy. Nevertheless, this notion of damages confirms a clear willingness of the EU PLD to align with the strictest standards in existence in individual Member States.

Moreover, although the expanded notion of "damages" is defined in the EU PLD, national divergences remain possible. Lithuania illustrates the interpretive divergence: While its draft omits the "medically recognised" qualifier for psychological harm, thus potentially broadening claims, it narrows the scope of data damage by cross-referencing the Data Governance Act's definition of data as "any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audiovisual recording."

Development Risk Defense. The EU PLD includes a "development risk" (or "state of the art") defense, under which a manufacturer can avoid liability if it proves that, at the relevant time, the objective scientific and technical knowledge was not advanced enough for the defect to be discoverable. If implemented inconsistently in the Member States, this defense could encourage forum shopping and distort competition within the European single market.

Ultimately, divergent national interpretations would undermine the European Union's goal of coherence in digital regulation. Some Member States may choose not to allow the development risk defense, resulting in stricter manufacturer liability even for genuinely undiscoverable defects. For example, Finland's draft bill follows that country's longstanding approach by not adopting the defense, thereby maintaining a higher level of manufacturer exposure. By contrast, Sweden and Germany propose to retain the defense, emphasizing its importance for keeping insurance pricing predictable and preserving incentives for innovation.

Litigation Risks

The EU PLD's expanded scope, claimant-friendly presumptions, and express recognition of claim transferability create conditions for a material increase in litigation volume and complexity. The abolition of the €500 threshold for property damage and the removal of liability caps for personal injury substantially lower the economic barrier to bringing claims.

This risk is further amplified by the Representative Actions Directive (Directive (EU) 2020/1828) and the increasing availability of third-party litigation funding. Of particular significance is the institutional infrastructure supporting such actions: At the European level, a substantial and continuously growing number of qualified entities are already empowered to initiate cross-border representative proceedings. This development is compounded both by the increasing permissibility of aggressive claim transfers as a tool of "strategic" litigation and by the erosion or removal of traditional caps on personal injury damages. Taken together, these dynamics materially reduce predictability in liability exposure and may result in risks for businesses becoming significantly heightened and less quantifiable.

Broader Implications for Businesses

The new regime carries consequences well beyond the courtroom. Public collective actions may result in sensitive commercial information being forcibly disclosed, which also heightens reputational exposure. The insurance sector is already factoring in the heightened liability environment when calculating premiums and tightening policy conditions, thereby imposing additional requirements for manufacturers seeking coverage. The cumulative effect, comprising higher litigation costs, increased insurance burdens, and regulatory uncertainty, poses significant challenges for businesses across all sectors.

Furthermore, in order to avoid duplication and conflicting liabilities arising from the same underlying facts, businesses must ensure alignment between the EU PLD and other regulatory frameworks, including the General Data Protection Regulation, the AI Act, and the Digital Services Act.

Proactive preparation is therefore essential. This includes strengthening documentation practices, reassessing supply chain responsibilities, reviewing insurance coverage, and developing coordinated, cross-border litigation strategies.