(Article drafted by Dimitris Chatzimichael & Christos Theodorou, Partners on March 18, 2026)
Alongside the new General Product Safety Regulation (GPSR) which came into force on 13 December 2024 and the increasing relevance of the EU collective redress framework (EU class action) established by the Representative Actions Directive, the adoption of the new EU Product Liability Directive 2024/2853 (PLD) on 23 October 2024, represents a significant development in the field of consumer redress. This new instrument will replace the existing Product Liability Directive 85/374/EEC, which has regulated product liability for nearly 40 years ago.
Beside the issue of general product safety and liability, the question of legal responsibility for damage caused by artificial intelligence (AI) systems has been widely introduced in legal scholarship. Initially, the European Union sought to address the issue of liability for damage caused by artificial intelligence (AI) through two complementary legislative instruments proposed in 2022: the revised (EU) Product Liability Directive 2024/2853 (PLD) and the AI Liability Directive (AILD), the latter intended to complement the regulatory framework established by the AI Act .
However, the landscape changed on 11 February 2025 when the Commission published its 2025 work programme and revealed the likely withdrawal of the Proposal for an Artificial Intelligence Liability Directive (‘AILD proposal’), citing “no foreseeable agreement” among Member States and evoking mixed reactions in the European Parliament: some welcoming the withdrawal considering the proposal “unnecessary and premature”, while others continued to support the harmonization of AI Liability, partially on the basis of AI FOMO (fear of missing out). Following the withdrawal of the AI Liability Directive and the adoption of the revised Product Liability Directive in October 2024, the revised PLD has become the principal legal instrument through which EU Member States may regulate liability from defective products—including AI-based systems—which cause harm to consumers or other natural persons (Articles 1(2), 5 and 7 PLD). The PLD, which is required to be implemented into domestic legal order of Member States by 9 December 2026 according to Article 21 since the 1985 Directive is repealed with effect from 9th of December 2026, broadens the notion of a “product” to expressly include software and AI systems (Article 4 (1) PLD), thereby extending the strict liability regime to damage caused by such technologies.
From a structural and doctrinal point of view, the revised PLD introduces significant conceptual and procedural changes, which can be organized into four categories: a) The scope of application, b) the elements of liability the claimants must prove, 3) the exemptions from liability /available defences and d) procedural provisions addressing evidence disclosure and evidentiary presumptions. On this basis, the revised PLD modifies the conceptual understanding of “strict product liability” by introducing mechanisms to deal effectively with the ‘evidentiary asymmetry’ and ease the claimant’s burden of proof. The earlier framework under 1985 Directive structured on two pillars: a defect-based liability and limited defences[1]. Hence, a) the manufacturer had to ensure that the product was safe and did not cause harm, rather than merely exercising due care to make it safe and b) the product liability regime of the 1985 Directive predetermined the defenses available to the defendant, so that liability could be avoided only in clearly defined and exceptional circumstances[2]
The concept of product liability under the revised PLD maintains the two original pillars of a “no fault” strict liability and a narrow scope of available defences, however, it introduces an additional feature, or a third pillar: a set of procedural rules designed to assist claimants in proving their claims[3].
- The two stages of “product liability” on the EU legislation
The adoption of the revised PLD 2024/2853 is considered as an important evolution of EU product liability law, because it provides an homogenous framework which invites reconsideration within EU Law of the concepts of “product liability” and “harm caused by defective products”, including products incorporating AI technologies, whilst it updates the legal framework to address challenges posed by digital adaption and transformation (digitalization), software-driven products and complex technological systems. On the other hand, the Directive is a highly detailed legislative instrument that employs specialised terminology and numerous “lex specialis” provisions, features which may complicate its interpretation and practical application.
Product liability is typically described as “no fault” liability for a damage caused by defective products, which is a form of strict liability applicable when damage results from defective products[4]. However, the traditional definition offers only a limited explanation, because it focuses mainly on the absence of fault and on the circumstances in which this kind of liability applies, rather than the structural characteristics of the product. In the European Union, product liability is primarily defined and evolved through legislation, rather than judicial development, in two basic stages. The first stage extends from the adoption of the original Product Liability Directive in 1985 until its replacement in 2024, as a response to major industrial accidents and the growing recognition that traditional fault-based liability rules were inadequate for addressing risks associated with mass-produced goods[5]. The second stage begins with the adoption of the revised Directive in 2024, a reform motivated largely by concerns, that the earlier framework could not adequately regulate modern technological developments and products incorporating digital technologies, particularly digital products and AI systems[6]
- Scope of Application
An important factor in determining whether the Directive applies to a particular dispute when damage occurs is to examine its scope of application, since the product liability regime of the revised PLD provides, in general, favourable conditions for claimants and defendants have strong reasons to argue whether a case falls within its boundaries. To this direction, three main questions determine applicability: what is a product, who is entitled to claim compensation, and who will be held liable.
- Definition of Product. The Directive adopts a broad definition in Article 4(1) defining as products “all movables, even if integrated into, or interconnected with, another movable or an immovable; it includes electricity, digital manufacturing files, raw materials, and software”. Unlike the earlier framework, which primarily concerned tangible goods, the revised Directive explicitly includes software and digital technologies in contemporary products. Even if the main text of the revised Directive does not define software, Directive’s Recitals provide a non-exhaustive list, including operating systems, computers programs applications and AI systems (Recital 13 of PLD). This expansion, however, is subject to certain limitations, i.e. free and open-source software distributed outside commercial activities is excluded (Article 2(2) and Recital 14). Similarly, purely informational digital content does not qualify as a product. The Directive also extends the concept of product to certain services that are closely connected to product functionality. Such services fall within the scope only when they are integrated into the product and directly influence its safety. Examples include safety-related software updates, navigation systems, or health-monitoring features (Article 4 (3) and 4 (2) of PLD and Recital 17[7]. In this respect, the clarification provided by the Krone‑Verlag (Case C‑65/20) by the Court of Justice of the EU remains relevant, beyond the revision of the Directive: damage caused solely by inaccurate information contained in a medium, such as a newspaper, does not render that medium a defective product within the meaning of the PLD (Case C-65/20 VI v KRONE-Verlag GmbH & Co KG [2021] ECLI:EU:C:2021:471, para 42)
- Persons Entitled to Claim. The Directive grants standing primarily to natural persons, who suffer damage caused by defective products (Article 5(1) PLD). Although this formally includes all individuals, the framework retains a strong consumer protection orientation, since the notion of product liability has been traditionally understood and oriented as a consumer protection regime. A strong argument in favour of this observation is provided by the provision of Article 6 of PLD which clarifies that certain categories of compensable harm remain limited to non-professional or not exclusively professional use. Compensation for health-related harm is broadly available, whereas claims concerning property or data are more limited when such assets are used exclusively for professional purposes. In conclusion, while the Directive extends protection to all natural persons in relation to damage to health, it provides a narrower protection for those acting in a professional capacity, where the damage concerns property or data. In that sense, the revised Directive formally protects all natural persons but offers stronger protection to consumers. Finally, it shall be also noted that the revised PLD includes persons who have inherited the right to compensation or to whom it has been subrogated, as well as persons acting on behalf of one or more injured persons (Article 5 (2) of PLD).
- The system of potential liable persons & the Economic Operators. The revised Directive’s ratio legis is based on the principle that those harmed by defective products have a realistic chance of obtaining compensation, even when the manufacturer, as the primary responsible party, cannot be reached.
A claimant seeking compensation according to Article 5 of the revised PLD is not entitled to act against anyone who is involved with the defective product, because only the persons explicitly included in the Directive may be held liable. In addition, liability under the revised PLD may extend to several persons within the product supply chain, collectively referred to as economic operators (Article 4 (15) PLD). These include manufacturers, importers, authorised representatives, fulfilment service providers, distributors, and in certain cases online platforms. We observe that the revised Directive establishes a hierarchical chain of liability, meaning that it is introduced a sequential order in which potential defendants may be sued. Manufacturers normally constitute the primary defendants. However, when the manufacturer cannot be identified or is located outside the European Union, liability may extend to other actors involved in placing the product on the market.
Overall, the liability framework is structured in four tiers. The 1st tier consists of” manufacturers”, a concept that the Directive defines broadly and which encompasses the “real manufacturers”, namely those who actually produce the product, including instances where the product is manufactured for their own use (Article 4(10)(a) and (c)) and the “manufacturers by labelling” that is, parties that have a product manufactured by another entity but place it on the market under their own name, trademark, or other distinguishing sign (Article 4(10)(b)). Although these two categories reflect different degrees of control over the design and production process, the Directive does not require claimants to identify or pursue the “real manufacturer” before bringing an action against a “manufacturer by labelling”, an interpretation confirmed by the Court of Justice of the EU in Case C-264/21 Fennia v Philips (coffee machine)[8] and it continues to be relevant following the revision of the Directive[9].
When the manufacturer is not established or cannot be identified within the EU (Article 8(3) of PLD), the Directive allows the claimant to pursue other economic operators (2nd tier) in the supply chain, on the basis of “risk – benefit” or “risk – profit” justification of liability, such as importers, authorized representatives, fulfilment service providers, and distributors. Each one of the mentioned above operators can contribute to the process by which unsafe products reach consumers through import, handling, storage or sale, whilst they can make economic profit from placing unsafe products in the market[10]. The 3rd tier operators are fulfilment service providers27—those who handle key logistics tasks such as warehousing, packaging, shipping products (Article 8(1)(c) of PLD) because of their role in enabling product placement procedures aiming to ensure safety (Article 4 (13) of PLD). The Directive defines fulfilment service provider as “any natural or legal person offering, in the course of a commercial activity, at least two of the following services: warehousing, packaging, addressing and dispatching of a product, without having ownership of that product”. This definition excludes postal services (art. 2(1) of Directive 97/67/EC), parcel delivery services (art. 2(2) of Regulation (EU) 2018/644), and other postal or freight transport services.
Because of their soft power to decide which (safe or unsafe) products to distribute or host on their platforms and reach consumers, while they benefit from this activity, in the operators of the 4th tier are included distributors and online platforms. Online platforms can be held liable only if the criteria in Article 6 (3) of the Digital Services Act are met, that is, where the platform actively presents the product or otherwise enables the specific transaction, see Article 8(3) and (4) of PLD). Hence, in this tier included persons, who serve as last resort defendants, liable only when the claimant cannot identify a higher – tier operator, because they control a product’s initial entry into the EU market.
In conclusion, the above structure reflects the Directive’s aim of ensuring that victims have a realistic opportunity to obtain compensation[11].
[1] I. Rokas, Die Umsetzung der Produkthaftungsrichtlinie der EG, Das Beispiel Griechenland, Versicherungsrecht, 1989, Heft 13, II.2.
[2] Th. Verheyen, ‘Modern Theories of Product Warnings and European Product Liability Law’, Utrecht Law Review, 2019, Vol. 15 (3), no. 1 -2, p. 44-46. doi:10.36633/ulr.541, Cees van Dam, European Tort Law, Oxford UP, 2nd ed, 2013, Part II, Strict Liability, par. 1003-3, 301, I. Rokas, Die Umsetzungder Produkthaftungsrichtlinie der EG.. Versicherungsrecht, 1989, Heft 13, ΙΙ.1.a–b, H. Taschner, Produkthaftung: Richtlinie des Rates vom 25. Juli 1985 zur Angleichung der Rechts- und Verwaltungsvorschriften der Mitgliedstaaten über die Haftung für fehlerhafte Produkte (85/374/EWG) (1986), pp. 66–67, Case C-300/95, Commission v United Kingdom, ECLI:EU:C:1997:255, para. 24.
[3] D. Rimkutė, ‘The New EU Product Liability Directive: Doctrinal Analysis’, 8(Spec), (2025) Access to Justice in Eastern Europe, no. 3, p 76, Fr. Parisi & G. Frezza, Burdens of Proof in Establishing Negligence: A Comparative Law and Economics Analysis, Italian Law Journal 2023/Vol. 9, p. 77, II, p.78.
[4] El. van Gool, Product Liability in a More Circular Economy: A Study of Liability for Alternative Methods of Distributing and Producing Consumer Goods. Law. Université de Lille; Katholieke Universiteit Leuven, 2024, D. Rimkutė, ‘The New EU Product Liability Directive: Doctrinal Analysis’, 8(Spec), (2025) Access to Justice in Eastern Europe, no. 3, p 77.
[5] D. Wuyts, ‘The Product Liability Directive – More than Two Decades of Defective Products in Europe’ (2014) 5(1) Journal of European Tort Law 1. doi:10.1515/jetl-2014-0001.
[6] Digital Technologies and the Law of Obligations, ed. Zvonimir Slakoper & Ivan Tot, Routhledge 2022, esp. no. 1 ‘Contract and Tort Law in the Digital Age’, para. 2, 2.2 – 2.3, pp. 7 -9 and No 6 ‘Liability for AI’ by Nasir Muftic, para. 2.2, pp 98 ff, Seb. Lohsse et al., ‘Liability for Artificial Intelligence’ in Sebastian Lohsse, Reiner Schulze and Dirk Staudenmayer (eds), Liability for Artificial Intelligence and the Internet of Things (Nomos 2019) 9. doi:10.5771/9783845294797-9.
[7] G. Wagner, ‘Next Generation EU Product Liability – For Digital and Other Products’ Journal of European Tort Law 2024, Vol. 15 (2), pp. 185-6. doi:10.1515/jetl-2024-0011)
[8] Case C-264/21 Keskinäinen Vakuutusyhtiö Fennia v Koninklijke Philips NV [2022] ECLI:EU:C: 2022: 536, para 35 -36.
[9] See Case C-157/23 Ford Italia SpA v ZP Stracciari SpA, 18.4.2024 & Case C/2025/1062/24.2.2025).
[10] See M. Cappelletti, Justifying Strict Liability: A comparative analysis in Legal Reasoning, OUP 2022, Ch. 3.2, The risk-based justification of Strict Liability, pp 73-75.
[11] D. Rimkutė, ‘The New EU Product Liability Directive: Doctrinal Analysis’, 8(Spec), (2025) Access to Justice in Eastern Europe, no. 3, pp 82 -83.
You can read the full article here: The modernization of the product liability rules in the revised EU Product Liability Directive 20242853