Chapter II — Specific provisions on liability for defective products

Article 5 — Right to compensation¶

Member States shall ensure that any natural person who suffers damage caused by a defective product (the ‘injured person’) is entitled to compensation in accordance with this Directive.
Member States shall ensure that claims for compensation pursuant to paragraph 1 may also be brought by:

(a) a person that succeeded, or was subrogated, to the right of the injured person by virtue of Union or national law or contract; or

(b) a person acting on behalf of one or more injured persons by virtue of Union or national law.

Article 6 — Damage¶

The right to compensation pursuant to Article 5 shall apply in respect of only the following types of damage:

(a) death or personal injury, including medically recognised damage to psychological health;

(b) damage to, or destruction of, any property, except:

(i) the defective product itself;

(ii) a product damaged by a defective component that is integrated into, or inter-connected with, that product by the manufacturer of that product or within that manufacturer’s control;

(iii) property used exclusively for professional purposes;

(c) destruction or corruption of data that are not used for professional purposes.
The right to compensation pursuant to Article 5 shall cover all material losses resulting from the damage referred to in paragraph 1 of this Article. The right to compensation shall also cover non-material losses resulting from the damage referred to in paragraph 1 of this Article, in so far as they can be compensated for under national law.
This Article does not affect national law relating to compensation for damage under other liability regimes.

Article 7 — Defectiveness¶

A product shall be considered defective where it does not provide the safety that a person is entitled to expect or that is required under Union or national law.
In assessing the defectiveness of a product, all circumstances shall be taken into account, including:

(a) the presentation and the characteristics of the product, including its labelling, design, technical features, composition and packaging and the instructions for its assembly, installation, use and maintenance;

(b) reasonably foreseeable use of the product;

(c) the effect on the product of any ability to continue to learn or acquire new features after it is placed on the market or put into service;

(d) the reasonably foreseeable effect on the product of other products that can be expected to be used together with the product, including by means of inter-connection;

(e) the moment in time when the product was placed on the market or put into service or, where the manufacturer retains control over the product after that moment, the moment in time when the product left the control of the manufacturer;

(f) relevant product safety requirements, including safety-relevant cybersecurity requirements;

(g) any recall of the product or any other relevant intervention relating to product safety by a competent authority or by an economic operator as referred to in Article 8;

(h) the specific needs of the group of users for whose use the product is intended;

(i) in the case of a product whose very purpose is to prevent damage, any failure of the product to fulfil that purpose.
A product shall not be considered to be defective for the sole reason that a better product, including updates or upgrades for a product, has already been or is subsequently placed on the market or put into service.

Article 8 — Economic operators liable for defective products¶

Member States shall ensure that the following economic operators are liable for damage in accordance with this Directive:

(a) the manufacturer of a defective product;

(b) the manufacturer of a defective component, where that component was integrated into, or inter-connected with, a product within the manufacturer’s control and caused that product to be defective, and without prejudice to the liability of the manufacturer referred to in point (a); and

(c) in the case of a manufacturer of a product or a component established outside the Union, and without prejudice to the liability of that manufacturer:

(i) the importer of the defective product or component;

(ii) the authorised representative of the manufacturer; and

(iii) where there is no importer established within the Union or authorised representative, the fulfilment service provider.

The liability of the manufacturer referred to in the first subparagraph, point (a), shall also cover any damage caused by a defective component where it was integrated into, or inter-connected with, a product within that manufacturer’s control.
Any natural or legal person that substantially modifies a product outside the manufacturer’s control and thereafter makes it available on the market or puts it into service shall be considered to be a manufacturer of that product for the purposes of paragraph 1.
Member States shall ensure that, where an economic operator from among those referred to in paragraph 1 and established in the Union cannot be identified, each distributor of the defective product is liable where:

(a) the injured person requests that distributor to identify an economic operator from among those referred to in paragraph 1 and established in the Union, or its own distributor that supplied it with that product; and

(b) that distributor fails to identify an economic operator or its own distributor, as referred to in point (a), within one month of receiving the request referred to in point (a).
Paragraph 3 of this Article shall also apply to any provider of an online platform that allows consumers to conclude distance contracts with traders and that is not an economic operator, provided that the conditions set out in Article 6(3) of Regulation (EU) 2022/2065 are fulfilled.
Where victims fail to obtain compensation because none of the persons referred to in paragraphs 1 to 4 can be held liable under this Directive, or because the liable persons are insolvent or have ceased to exist, Member States may use existing national sectoral compensation schemes or establish new ones under national law, preferably not funded by public revenue, to appropriately compensate injured persons who have suffered damage caused by defective products.

Article 9 — Disclosure of evidence¶

Member States shall ensure that, at the request of a person who is claiming compensation in proceedings before a national court for damage caused by a defective product (the ‘claimant’) and who has presented facts and evidence sufficient to support the plausibility of the claim for compensation, the defendant is required to disclose relevant evidence that is at the defendant’s disposal, subject to the conditions set out in this Article.
Member States shall ensure that, at the request of a defendant that has presented facts and evidence sufficient to demonstrate the defendant’s need for evidence for the purposes of countering a claim for compensation, the claimant is required, in accordance with national law, to disclose relevant evidence that is at the claimant’s disposal.
Member States shall ensure that the disclosure of evidence pursuant to paragraphs 1 and 2, and in accordance with national law, is limited to what is necessary and proportionate.
Member States shall ensure that, when determining whether the disclosure of evidence requested by a party is necessary and proportionate, national courts consider the legitimate interests of all parties concerned, including third parties, in particular in relation to the protection of confidential information and trade secrets.
Member States shall ensure that, where a defendant is required to disclose information that is a trade secret or an alleged trade secret, national courts are empowered, upon a duly reasoned request of a party or on their own initiative, to take the specific measures necessary to preserve the confidentiality of that information when it is used or referred to in the course of or after the legal proceedings.
Member States shall ensure that, where a party is required to disclose evidence, national courts are empowered, upon a duly reasoned request of the opposing party or where the national court concerned deems it appropriate and in accordance with national law, to require such evidence to be presented in an easily accessible and easily understandable manner, if such presentation is deemed proportionate by the national court in terms of costs and effort for the required party.
This Article does not affect national rules relating to the pre-trial disclosure of evidence, where such rules exist.

Article 10 — Burden of proof¶

Member States shall ensure that a claimant is required to prove the defectiveness of the product, the damage suffered and the causal link between that defectiveness and that damage.
The defectiveness of the product shall be presumed where any of the following conditions are met:

(a) the defendant fails to disclose relevant evidence pursuant to Article 9(1);

(b) the claimant demonstrates that the product does not comply with mandatory product safety requirements laid down in Union or national law that are intended to protect against the risk of the damage suffered by the injured person; or

(c) the claimant demonstrates that the damage was caused by an obvious malfunction of the product during reasonably foreseeable use or under ordinary circumstances.
The causal link between the defectiveness of the product and the damage shall be presumed where it has been established that the product is defective and that the damage caused is of a kind typically consistent with the defect in question.
A national court shall presume the defectiveness of the product or the causal link between its defectiveness and the damage, or both, where, despite the disclosure of evidence in accordance with Article 9 and taking into account all the relevant circumstances of the case:

(a) the claimant faces excessive difficulties, in particular due to technical or scientific complexity, in proving the defectiveness of the product or the causal link between its defectiveness and the damage, or both; and

(b) the claimant demonstrates that it is likely that the product is defective or that there is a causal link between the defectiveness of the product and the damage, or both.
The defendant shall have the right to rebut any of the presumptions referred to in paragraphs 2, 3 and 4.

Article 11 — Exemption from liability¶

An economic operator as referred to in Article 8 shall not be liable for damage caused by a defective product if that economic operator proves any of the following:

(a) in the case of a manufacturer or importer, that it did not place the product on the market or put it into service;

(b) in the case of a distributor, that it did not make the product available on the market;

(c) that it is probable that the defectiveness that caused the damage did not exist at the time the product was placed on the market, put into service or, in the case of a distributor, made available on the market, or that that defectiveness came into being after that moment;

(d) that the defectiveness that caused the damage is due to compliance of the product with legal requirements;

(e) that the objective state of scientific and technical knowledge at the time the product was placed on the market or put into service or during the period in which the product was within the manufacturer’s control was not such that the defectiveness could be discovered;

(f) in the case of a manufacturer of a defective component, as referred to in Article 8(1), first subparagraph, point (b), that the defectiveness of the product in which that component has been integrated is attributable to the design of that product or to the instructions given by the manufacturer of that product to the manufacturer of that component;

(g) in the case of a person that modifies a product as referred to in Article 8(2), that the defectiveness that caused the damage is related to a part of the product not affected by the modification.
By way of derogation from paragraph 1, point (c), an economic operator shall not be exempted from liability where the defectiveness of a product is due to any of the following, provided that it is within the manufacturer’s control:

(a) a related service;

(b) software, including software updates or upgrades;

(c) a lack of software updates or upgrades necessary to maintain safety;

(d) a substantial modification of the product.