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EU Member States Begin Rolling Out New Product Liability Rules

By Louise Freeman, Anna Sophia Oberschelp de Meneses, Dan Cooper, Moritz Hüsch & Paul Wolpert on October 27, 2025
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*** UPDATED On April 23, 2026 ***

By December 9, 2026, all EU Member States are required to update their product liability laws to align with the (new) Product Liability Directive (EU) 2024/2853 (“PLD”). The PLD imposes liability on manufacturers of products (and other relevant parties) for harm caused by defective products, regardless of fault. The PLD modernizes the current EU product liability framework and renders the framework more claimant-friendly (see our previous blog post). It is expected to lead to an increase in claims, primarily as a result of the following changes:

  • Expanded scope of products falling within the PLD, including bringing AI and other software into scope.
  • Broader scope of recoverable damages, including psychological harm, property damage of any amount and data loss or corruption.
  • Liability beyond the point of sale, holding manufacturers responsible not only for defects at the time of sale but also for those arising while the product is under their control, such as failing to provide security and software updates.
  • Presumptions and disclosure obligations that ease the burden of proof for claimants. For example: (i) courts may presume defectiveness where damage results from an “obvious malfunction” during “reasonably foreseeable use”; (ii) presume causality where the product is defective and the damage is of a “kind typically consistent” with that defect; and (iii) presume defectiveness and/or causality where, despite disclosure, the claimant faces excessive technical difficulties and shows that it is likely the product is defective or linked to the damage.
  • Greater transparency and enforcement, including requirements for publishing any final judgments delivered by the national courts of appeal or courts of last instance in proceedings pursuant to the PLD, which could create risk of follow-on litigation.

The PLD does not apply directly in Member States. Instead, each country must transpose the PLD’s rules into national law, and that process is now well under way in several jurisdictions. As of April 2026, Germany, the Netherlands, Denmark, Finland, the Czech Republic, Slovakia, and Sweden have published bills transposing the PLD, while Hungary has already adopted its transposing law.

While the PLD aims at full harmonization, early transposition efforts show that meaningful national divergences are emerging, particularly in areas where the Directive allows Member States some discretion or where national lawmakers have gone beyond the PLD’s baseline.

Key areas where differences are already apparent include:

  • Non-material damage: The PLD leaves it to Member States to decide whether compensation should extend to non-material harm (e.g., pain and suffering). Germany’s draft law transposing the PLD allows recovery of non‑material damage in accordance with general civil‑law principles. The Dutch draft law does not expressly refer to a requirement for medical recognition of psychological harm, as provided for in the PLD.
  • Development risk defense: The PLD allows Member States to retain or abolish this defense, which shields producers from liability if a defect could not have been discovered given the state of scientific and technical knowledge at the time of marketing. The Czech Republic, Denmark, Germany, Hungary, the Netherlands, Sweden, and Slovakia have opted to retain the defense, sometimes with sector-specific carve outs. By contrast, Finland’s draft legislation does not provide for a development risk defense, reflecting a continuation of its existing product liability regime.
  • Distributor liability: As an extension to the strict liability under the PLD, Denmark’s draft PLD law also introduces a fault‑based distributor liability regime with a reversed burden of proof. Distributors are liable for product damage unless they can demonstrate the absence of fault or negligence, including where the damage results from negligence by upstream operators or prior distributors in the supply chain.
  • Recourse against software component manufacturers: Germany’s and Slovakia’s draft transposition laws do not incorporate Article 12(2) PLD, which limits recourse against small or micro‑enterprise software component manufacturers where recourse has been contractually waived. Germany’s explanatory memorandum to the draft notes that this specific statutory rule is unnecessary in light of existing contract‑law mechanisms.
  • Disclosure obligations: While the PLD introduces targeted disclosure obligations, Member States are taking different implementation approaches. For example, Denmark’s draft law expressly permits courts to order defendants to produce newly created documents generated through the compilation or organization of existing information. Finland implements the PLD’s mechanisms within its existing civil‑procedure framework, limiting such orders to substantiated party requests and subjecting them to proportionality and procedural safeguards. Such safeguards include confining court orders to how already existing evidence is presented, rather than requiring the creation of new material, preserving the affected party’s right to be heard before any order is made, and excluding coercive enforcement tools such as fines or bailiff action.

Some Member States are also using the transposition process to clarify the PLD’s interaction with sector‑specific liability regimes. For example, the German draft clarifies the relationship between the upcoming product liability regime and other sector-specific liability rules by excluding its application to certain medicinal products and referring those to the liability regime under the Medicinal Products Act (Arzneimittelgesetz) instead. This approach illustrates how Member States can preserve existing strict liability frameworks for high-risk sectors while implementing the PLD.

*             *             *

Covington advises companies on the specific steps needed to comply with the new PLD, including national laws transposing it. We provide practical, actionable strategies tailored to your products, risk profile, and markets, while closely tracking implementation across all EU Member States. For detailed guidance or jurisdiction-specific updates, do not hesitate to contact us.

Photo of Louise Freeman Louise Freeman

Louise Freeman represents parties in complex commercial disputes and class actions, and co-chairs the firm’s Commercial Litigation and EMEA Dispute Resolution Practice Groups.

Described by Legal 500 as “one of London’s most effective partners,” Louise helps clients to navigate challenging situations in a…

Louise Freeman represents parties in complex commercial disputes and class actions, and co-chairs the firm’s Commercial Litigation and EMEA Dispute Resolution Practice Groups.

Described by Legal 500 as “one of London’s most effective partners,” Louise helps clients to navigate challenging situations in a range of industries, including technology, life sciences and financial markets. Most of her cases involve multiple parties and jurisdictions, where her strategic, dynamic advice is invaluable.

Louise also represents parties in significant competition law claims, including a number of the leading cases in England as a client noted, “Louise is really impressive. She has great instincts and is good with clients” (Chambers Global: Competition Law respondent).

Louise is also a “recognised name for complex class actions” (Legal 500), defending clients targeted in proposed opt-out and opt-in claims, as well as advising clients on multi-jurisdictional class action risks.

Client comments in Chambers Global describe Louise as “one of the savviest litigators in London” and that “Louise is absolutely outstanding. She delivers a Rolls Royce level service and clients have supreme confidence in her.”

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Photo of Anna Sophia Oberschelp de Meneses Anna Sophia Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act…

Anna Sophia Oberschelp de Meneses advises on EU data protection, cybersecurity, and consumer law. Her practice covers the full range of Europe’s digital regulatory framework, including GDPR, ePrivacy, NIS2, the Cyber Resilience Act, the AI Act, the Digital Services Act, the Data Act, the European Health Data Space, and EU consumer protection law, including product safety, product liability, and consumer rights legislation. She focuses on the operational side of compliance — helping clients design policies and processes, draft documentation, and build the internal frameworks needed to meet regulatory requirements in practice.

She also advises on contentious matters, drawing on experience managing investigations before national regulators and proceedings before national courts and the Court of Justice of the European Union. She works closely with Covington’s disputes teams on matters at the intersection of regulatory compliance and litigation.

Read more about Anna Sophia Oberschelp de MenesesEmailAnna Sophia's Linkedin Profile
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Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as the IAPP’s European Advisory Board, Privacy International and the European security agency, ENISA.

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Photo of Moritz Hüsch Moritz Hüsch

Moritz Hüsch is partner in Covington’s Frankfurt office and co-chair of Covington’s Technology Industry Group as well as the IoT & AI Practice Groups. His practice focuses on complex technology- and data-driven licensing deals and cooperations, outsourcing, commercial contracts, e-commerce, m-commerce, as well…

Moritz Hüsch is partner in Covington’s Frankfurt office and co-chair of Covington’s Technology Industry Group as well as the IoT & AI Practice Groups. His practice focuses on complex technology- and data-driven licensing deals and cooperations, outsourcing, commercial contracts, e-commerce, m-commerce, as well as privacy and cybersecurity.

Moritz is regularly advising on issues and contracts with respect to IoT, AV, big data, digital health, and cloud-related subject matters. In addition, he regularly advises on all IP/IT-related questions in connection with M&A transactions. A particular focus of Moritz’s practice is on advising companies in the pharmaceutical, life sciences and healthcare sectors, where he regularly advises on complex licensing, data protection and IT law issues.

Moritz is regularly listed as one of the best lawyers in the areas of IP, IT, and data protection, among others, by Chambers, Legal 500, Best Lawyers in cooperation with Handelsblatt, and Wirtschaftswoche.

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Photo of Paul Wolpert Paul Wolpert

Paul Wolpert is an associate in Covington’s Frankfurt office. He focuses on IT law, outsourcing, cloud-services, digitalization/industry 4.0, technology and data driven licensing deals, E-Commerce and data protection.

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  • Posted in:
    Technology and AI
  • Blog:
    Inside Privacy
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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