New EU Directive on Product Liability: Implications for the Belgian product liability regime

As of October 2024, the European Parliament and the Council have introduced a new directive on product liability, Directive (EU) 2024/2853, which aims to modernize and harmonize the rules across the European Union. This directive replaces the nearly 40-year-old Council Directive 85/374/EEC and addresses the challenges posed by new technologies, circular economy business models, and global supply chains
Key Changes in the New Directive
The new directive emphasizes liability without fault for economic operators, ensuring fair risk distribution in modern technological production. It also aims to improve consumer protection by making it easier for individuals to claim compensation for damages caused by defective products
Impact on Belgian Product Liability Rules
The new EU directive will have an impact on the existing rules outlined in Book VI of the Belgian Civil Code, Chapter 7 on special liability regimes for defective products. Here are some key points to consider:
- Definition of Product: The Belgian Civil Code defines a product as any tangible movable item, including electricity (Art. 6.42). The new directive expands this definition to include digital products and services and integrated products such as software or digital services, reflecting the evolving nature of the market. In Belgium the same was already implemented in the obligation to deliver conforming products in consumer sales.
- Defective Products: A product is considered defective if it does not provide the safety one is entitled to expect, considering all circumstances (Art. 6.45). The new directive maintains this standard but emphasizes the importance of considering the state of scientific and technical knowledge at the time the product was put into circulation
- Burden of Proof: The injured party must prove the damage, the defect, and the causal relationship between the defect and the damage (Art. 6.47). The new directive aims to simplify this process, making it easier for consumers to claim compensation by lowering the burden of proof in case it is ‘likely that the product was defective and that the damage was due to htese defects and by providing a right to access to documents of the producer for consumers with physical damage.
- Exclusion of Liability: The Belgian Civil Code outlines several grounds for excluding producer liability (Art. 6.48). The new directive maintains these exclusions but adds provisions for compliance with mandatory regulations and the state of scientific and technical knowledge
- Joint Liability: If multiple persons are liable for the same damage, each is jointly and severally liable (Art. 6.49). The new directive reinforces this principle, ensuring that all parties involved in the production and distribution chain are held accountable, especially taking into account the circular economy, where products are ‘refurbished’
- Damage: Compensation covers damage to persons and goods, with specific provisions for private use (Art. 6.51). The new directive expands the scope of possible damage to include digital products and services and also expressly allow for the inclusion of psychological damage.
The Directive applies as off 8 December 2024 and the Belgian legislator has until 9 December 2026 to transpose the Directive into national law.
Belgian SMEs are advised to review their current practices and ensure compliance with both the existing Belgian rules and the new EU directive. We can provide tailored advice and support to help businesses navigate these changes.