Product Risks Today: How the new Product Liability Directive facilitates private enforcement

The EU’s new Product Liability Directive (PLD), effective as of 8 December 2024, brings significant updates to the 1985 product liability regime. Member States must implement it into national law by 9 December 2026. Among its key changes are two claimant-friendly procedural mechanisms: enhanced disclosure obligations and presumptions for defect and causation, making it easier for claimants to prove their case. These changes aim to address challenges claimants face in proving liability, tilting the scales significantly in their favour and increasing the liability risks for manufacturers.

I. New Claimant-friendly rules

The PLD provides for a strict liability framework, where the claimant does not need to prove fault on the part of the defendant. The EU legislator, however, believes that it is still too difficult for claimants to obtain compensation due to evidentiary hurdles and increasing technical complexity of products. The PLD addresses these (perceived) challenges by introducing:

1. Disclosure Obligations: To address an asymmetry of information in product liability litigation, courts may order defendants as well as claimants to disclose evidence. 
2. Burden of proof: The PLD introduces so called rebuttable presumptions, which will make it easier for claimants to prove defects of a product and/or causation. 

II. New disclosure obligations (Article 9 PLD)

Requirements of disclosure

At the request of a claimant, a court may order a defendant to disclose evidence if the claimant presents facts and evidence sufficient to support a plausible claim for compensation (Article 9(1) PLD). Defendants can make a similar request if they present facts and evidence sufficient to demonstrate the need for evidence to counter a claim for compensation (Article 9(2) PLD). The wording of Article 9 PLD is rather unclear and its specific meaning is subject to interpretation. The directive expressly states that further clarifications shall be undertaken by the Member States. In this context, it will be essential to determine what the claimant must demonstrate and substantiate in terms of plausibility, such as whether the mere logical coherence of the claim is sufficient. The national legislators should also provide clarity as to how precisely the claimant must specify the evidence to be disclosed in order to mitigate the risk of unjustified discovery 'fishing expeditions'.

Scope of evidence and limits

In terms of disclosable evidence, Article 9 does not only apply to documents. For example, courts may order to disclose technical or general information about the product, findings from product observation, or similar products. A court order may also include documents that have to be created ex novo by the defendant by compiling or classifying the available evidence.

Disclosure is limited to what is necessary and proportionate (Article 9(3) PLD). As part of the required balancing of interests, courts have to consider the legitimate interests of all parties concerned, in particular in relation to the confidentiality of information and trade secrets (Article 9(4) PLD). The PLD also empowers national court to take measures to preserve confidentiality of information that is (allegedly) a trade secret in the course of and after the proceedings upon duly reasoned request of a party or on their own initiative (Article 9(5) PLD). In this respect, an 'in camera' procedure may be considered, allowing evidence to be presented to the court but not to the opposing party. As the assessment of what is necessary and proportionate however is the responsibility of the presiding court, it remains to be seen whether the balancing of interests will mitigate the disclosure obligation in practice.

Additionally, courts may order evidence to be presented in an easily accessible and understandable manner (Article 9(6) PLD). This provision is based on the idea that a claimant should not have to resort to assistance from experts in order to use the evidence to prove his case. This could place a significant burden on defendants, especially in industries with highly technical and complex products. 

Non-Compliance with disclosure obligation

Failure to comply with a disclosure order triggers a rebuttable presumption of defect (Article 10(2) lit. a) PLD). The directive does not clarify in what circumstances the defendant 'fails to disclose relevant evidence'  i.e. what kind of breach of the disclosure obligation is required in order to trigger this presumption: Will disclosure of evidence in a not easily understandable manner amount to a failure pursuant to Article 10(2) lit. a) PLD? What about a mere technical breach like a missed deadline? As a consequence of these uncertainties, there is a risk that defendants will 'over-comply' in many cases with their disclosure obligations to avoid the application of Article 10(2) lit. a) PLD. 

III. Rebuttable presumptions of facts (Article 10 PLD)

The PLD introduces presumptions helping claimants to prove defect and/or causation. Courts may presume:

• Defectiveness (Art. 10(2) PLD): Where, 
  • as noted above, a defendant fails to comply with an obligation to disclose information;
  • the product does not comply with mandatory safety requirements intended to protect against the risk of the damage suffered;
  • the damage was caused by an obvious malfunction of the product during reasonably foreseeable use or under ordinary circumstances.
• Causation (Art. 10(3) PLD): Where it has been established that a product is defective and the kind of damage that occurred is of a kind typically consistent with the defect in question.
• Both defectiveness and causation (Art. 10(4) PLD): Where the claimant faces 'excessive difficulties, in particular due to technical or scientific complexity' in proving defectiveness or causality, and the claimant demonstrates their likelihood. This sweeping new provision is remarkably claimant-friendly for at least two reasons: First, there is a considerable risk that courts will often bypass an otherwise necessary taking of evidence by taking the view that proving defectiveness and causation seems 'excessively' difficult and complex for the claimant. Second, claimants only have to demonstrate that causation and defectiveness are likely (a lower standard than probability) in order to allow courts to apply Article 10(4) PLD.

Defendants can rebut the presumptions stipulated in Article 10 (Art. 10 (5) PLD). However, in practice these presumptions may lead to a de facto reversal of the burden of proof, making it much more difficult for defendants to oppose a claim.

IV. Outlook

The PLD represents a significant shift in EU product liability law. The directive’s goal of facilitating private enforcement in the product liability space are clear. The procedural instruments of the PLD are very claimant friendly and will tip the scales to the disadvantage of defendants. Its ultimate impact will depend on the transposition of the PLD into national laws and judicial interpretation. Although the PLD provides for full harmonisation, i.e. Member States may not adopt more or less stringent provisions, it will be interesting to see how each Member State will implement these procedural features in its current procedural system. At least in continental Europe, procedural law mostly provides only limited disclosure mechanisms or statutory presumptions. However, there are more recent precedents, such as the implementation of the EU Damages Directive, to which Member States may refer.

For a general update on the PLD, please see here The new Product Liability Directive | Freshfields and here A new regime for a new era: How the EU Product Liability Directive will reshape product liability in Germany, Moritz Becker, Patrick Schroeder, Martin Mekat, Kristina Weiler, Anita Bell, Hannah Meyer.