When are you liable for damage caused by your product?
A customer holds you liable for damage caused by your product. This might involve personal injury, damaged property, or consequential damage. The question is: is that claim justified
, and what should you do?
Product liability is based on Article 6:185 of the Dutch Civil Code and the European Product Liability Directive. It is a strict liability: you can be held liable even if you have not made a mistake. The determining factor is whether your product was defective and whether that defectiveness caused the damage.
Who is liable: the producer, the importer, or the seller?
Product liability rests primarily on the manufacturer of the defective product. However, importers, distributors, and sellers can also be held liable.
As a producer, you are liable if you have manufactured the product, if you affix your name or trademark to the product, or if you have supplied raw materials or components that
have been incorporated into the product.
As an importer from countries outside the EU, you are legally treated the same as the producer. You are then fully liable for defects in products that you import.
As a seller, you may be held liable if the producer cannot be identified or is established outside the EU and you fail to disclose the identity of your supplier. If you do disclose that identity, you are released from further liability.
For property damage under €500, the seller is liable. Above €500, the producer or importer is liable. In the event of personal injury or death, the producer is always liable.
What is a defective product?
A product is defective if it does not provide the safety that a reasonable user may expect from it during normal use. In this regard, all circumstances are taken into account: the presentation of the product, the instructions for use and warnings, the expected use, and the time at which the product
was placed on the market.
Damage to the defective product itself is not covered by product liability. Contractual
liability or warranty applies to that. Product liability relates to damage caused by the defective product to other property or persons.
What does the customer have to prove?
The burden of proof lies with the customer submitting the claim. He must demonstrate three things:
First, that there is a defect in the product. Second, that he has suffered damage. Third, that there is a causal link between the defect and the damage.
In practice, this is not always straightforward. Consequently, the claim is not automatically justified. We assess whether all evidentiary requirements have been met and whether there are grounds to dispute liability.
When can you dispute liability?
There are legal grounds to dismiss product liability. The most important are: the defect did not exist at the time you placed the product on the market; the state of science and technology made it impossible to discover the defect; the damage was caused by improper use of the product; or the 10-year liability period has expired.
Product liability cannot be contractually excluded or limited vis-à-vis consumers. For business-to-business (B2B) customers, additional contractual agreements regarding liability are possible, provided they do not conflict with mandatory law.
New EU directive: also digital products and AI
As of December 8, 2024, a revised EU Product Liability Directive is in force. This directive extends
liability to digital products, software, AI systems, and products sold via online platforms. Dutch legislation will be adapted to this in the coming years. Companies that develop or import digital products or AI applications must take this expansion into account.
