From physical products to digital liability: the impact of Directive (EU) 2024/2853 on producers and consumers.

On 8 December 2024, the new Product Liability Directive (EU) 2024/2853 came into force. The old Directive had been in force in the European Union since 1985 in case a defective product results in damage. This Directive was a good basis, but with all the (technical) developments in the past 40 years, such as AI, the Directive really needed modernisation. This blog looks at some of the changes and what this could mean for producers and consumers.

Concept of product

As indicated, the old Directive dates back to 1985. At that time, the term “product” was still quite clear; it simply meant a physical, tangible object. However, technology has advanced so much that this assumption is outdated. In the new directive, the term “product” has therefore been considerably broadened and extended to include digital variants. Think, for instance, of software, AI systems and digital services.

For example, a product can function thanks to a digital component - as in the case of a smart thermostat or a robot hoover. The software that makes this functioning possible is also considered a product thanks to the new directive, and its developer is thus considered a producer. Software that functions independently - such as autonomous AI applications - also falls within the scope of the directive.

In short: it has long since ceased to be only traditional manufacturers of tangible goods who are at risk of product liability. Software developers, digital service providers and platform providers can now also fall under this liability.

Concept of damage

Now that the concept of “product” has been broadened, the picture of what constitutes “damage” within the framework of product liability is also changing. Whereas previously only personal injury or material damage was covered, this has been significantly expanded under the new directive. Thus, immaterial damage is now also recognised - provided it has been medically established. Think of demonstrable psychological damage resulting from a defective product.

In addition, damage due to loss of or damage to digital data has also been added as a new category. A concrete example is the erasure of an entire data set due to a defect in software or AI systems. Such digital damage has often been difficult to legally qualify until now, but with this directive, it gets a clear place within the liability regime.

Lower limit

Under the old directive, an important threshold applied: only damage above € 500,00 was eligible for compensation. This meant that consumers with relatively small claims - think broken glasses or damaged laptops - were often left empty-handed. That limit has been completely abolished with the new directive.

This change significantly lowers the threshold for making a claim. Consumers can now claim compensation even for smaller amounts of damage. This makes liability law more accessible and more attuned to the reality in which even limited digital damage can be impactful.

In addition, it is no longer required that the product is exclusively for private use. Even when a product is partially used for business purposes, an injured party can rely on the directive. This is relevant, for instance, for self-employed persons or small businesses that use technology or equipment in their daily business operations.

Burden of proof relief for victims

In many product liability cases, consumers run into a familiar problem: providing evidence. Proving that a product is defective and that this defect caused the damage often turns out to be quite a challenge in practice. Especially with complex or digital products, where technical knowledge lies with producers, the information gap for consumers is considerable.

The new directive accommodates consumers in this respect by introducing the term ‘legal presumptions’. In certain cases, it may be presumed that a product was defective and that there is a causal link between the defect and the damage suffered. This significantly eases the burden of proof.

Moreover, judges are given the power to require manufacturers to produce internal product information - for example, on design, manufacturing or software operation. This information can be decisive in substantiating a claim and gives consumers a stronger starting position against professional parties.

Conclusion

The new rules make one thing clear: product liability has been radically modernised and broadened. Consumers are given more options to get their damages compensated, while the number of parties that can be considered producers has been significantly expanded. In doing so, the EU is responding to a society in which digital technologies are at least as decisive as physical products and in which user protection must be central. EU member states have until 9 December 2026 to transpose the directive into national law.

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