EU Product Liability Directive: Who Is Liable for Non-EU Brands?

The new EU Product Liability Directive, Directive (EU) 2024/2853, applies to products placed on the EU market or put into service from 09/12/2026. It keeps product liability no-fault and treats software as a product. For a non-EU brand, the biggest change is who can be sued. The EU importer was already liable under the 1985 rules. Now, where the manufacturer is outside the EU, a claimant can also pursue the manufacturer's authorised representative, alongside the importer and the manufacturer itself. If neither an importer nor an authorised representative is established in the EU, the fulfilment service provider can be liable instead.

Most non-EU brands appointed an importer of record, an EU responsible person and a 3PL to clear customs, pass GPSR checks and move stock. Those contracts were written for those jobs, not for liability claims. This is not legal advice. Treat each point as a question for your advisers.

What does the new Product Liability Directive do, and when does it apply?

The Product Liability Directive (EU) 2024/2853 was adopted on 23/10/2024 and replaces the 1985 Directive (Directive 85/374/EEC). A 2026 corrigendum to the application date corrected the text so that it applies to products placed on the market or put into service "after 8 December 2026", which means from 09/12/2026. National laws are due by the same date. Products already on the market before that date stay under the 1985 rules, as the European Commission's page on liability for defective products confirms.

For a product brand:

• Who can claim. Individuals, not companies.
• What damage counts. Death or personal injury, including medically recognised psychological harm, damage to property other than the product itself or property used only for professional purposes, and the loss or corruption of data not used for professional purposes.
• No threshold or cap. The old EUR 500 property-damage threshold has gone, and Member States can no longer cap total liability.
• Time limits. Three years from when the claimant knew, or should have known, of the damage, the defect and who to sue. A 10-year longstop, extended to 25 years for personal injuries that take time to appear.

Who is liable when the manufacturer is outside the EU?

A brand that puts its name or trademark on a product made by a factory is treated as the manufacturer.

Where the manufacturer is outside the EU, a claimant can pursue the EU importer and the manufacturer's authorised representative, alongside the manufacturer itself. If neither an importer nor an authorised representative is established in the EU, the fulfilment service provider can be liable instead. The importer and the authorised representative can both be pursued at once, because Article 8(1)(c) names both and Article 12 makes liable operators jointly and severally liable. In practice, several operators can be pursued together for the full amount and settle contributions afterwards. See Kennedys' analysis of the liability cascade for the full list.

• Importer. The business that places a product from a third country on the EU market.
• Authorised representative. A business established in the EU with a written mandate from the manufacturer to act for it on specified tasks. This includes the authorised representative you appoint under EU product safety and market surveillance rules.
• Fulfilment service provider. A business offering at least two of warehousing, packaging, addressing and dispatching, without owning the product. A 3PL that stores, packs and ships your stock is one. A parcel carrier is not.

You cannot contract out of liability to the injured person, but contracts can still allocate the cost between businesses.

How courts will treat 3PLs is untested. We already push brands to settle the importer of record before the first shipment, because in Germany it decides whether import VAT can be recovered. EU customs reform and the importer of record goes through the customs side.

Does the Directive cover software, updates and connected devices?

Yes. Software is now expressly a product. The recitals make clear that firmware, apps and AI systems count as software, however they are delivered. Three points matter:

• Related services are components. A digital service a connected device relies on for one or more of its functions, such as a cloud or app service, is treated as a component, and the manufacturer is liable for it where it is within the manufacturer's control.
• Cybersecurity and updates feed into defectiveness. Cybersecurity weaknesses that affect safety, and the way a product behaves after updates or learning, are part of whether it is defective.
• Missing safety updates remove a defence. If a safety update within the manufacturer's control was needed and not supplied, the manufacturer cannot argue the defect appeared after sale. That does not cover an owner who failed to install an update that was supplied.

Anyone who substantially modifies a product outside the manufacturer's control, including by software, and then makes it available on the market or puts it into service is treated as its manufacturer for liability purposes.

When can a marketplace be liable for a defective product?

A marketplace can be liable like a distributor only where shoppers would reasonably think the platform, or a seller under its control, is supplying the product, and it fails to name an EU operator within a month. A platform that itself acts as importer, fulfilment service provider or in another listed role is liable in that role. Whether marketplace fulfilment programmes count as fulfilment service providers is untested, so do not plan on the marketplace carrying the risk.

A marketplace's route out is naming an EU operator, which will usually be your importer or authorised representative. For where each marketplace sits, see selling on marketplaces in Europe.

How is this different from GPSR, and where does the responsible person fit?

The General Product Safety Regulation (EU) 2023/988 has applied since 13/12/2024. GPSR requires an EU-based responsible person before a product can be sold. The Product Liability Directive decides who pays compensation when a defective product causes harm. The two regimes run side by side. The GPSR responsible person usually holds one of the roles named in the liability chain. Our reading is that the responsible person a brand appointed for GPSR may now also be a defendant. It is not automatic, because liability attaches to the role that business actually holds.

Where a claimant shows that a product breaks a mandatory EU safety requirement, including under GPSR, that is meant to protect against the kind of harm suffered, the product is presumed defective, although the business can rebut it. A GPSR gap can become a liability problem too. Our guide to EU compliance for Amazon sellers under GPSR and EPR covers the set-up.

What changes for evidence and the burden of proof?

The claimant still has to prove the defect, the damage and the causal link. Once a claim is plausible, a court can order the business to disclose relevant technical evidence, with protection for trade secrets. Courts will also presume a defect if a business fails to disclose evidence, if the claimant shows the product breaks a mandatory safety requirement meant to protect against that harm, or if it obviously malfunctions in normal use. All of these presumptions can be rebutted.

If your test reports and technical file sit with a factory overseas and no one in your EU chain can produce them quickly, you risk the non-disclosure presumption working against you.

Which EU countries have transposed the Product Liability Directive?

As at 16/10/2026, to be re-checked before you rely on it:

• Germany. The Bundestag passed Germany's new Product Liability Act on 08/10/2026, and on 16/10/2026 the Bundesrat let it through without referring it to the mediation committee. Its main provisions are reported to take effect on 09/12/2026. Publication in the Federal Law Gazette is not yet confirmed.
• Netherlands. The lower house passed the implementing bill on 15/10/2026. It now goes to the Senate.
• Italy. A draft decree amending the Consumer Code is before Parliament.
• Ireland. The law is being drafted, and the Irish Government has said it expects to meet the deadline.
• France and Spain. Neither had published a draft law as at mid-October 2026.

Reed Smith's tracker of Member State transposition gives a wider view. Late national laws do not move the EU application date. How national courts handle claims before their own law is in force is a question for your advisers.

What should a non-EU brand check before 09/12/2026?

Questions to resolve with your advisers now:

1. Importer of record. Which entity is the importer for each EU stock flow?
2. Authorised representative mandate. Is there a written mandate, and what does it say about liability, recourse and insurance?
3. 3PL contract. Does your 3PL meet the fulfilment service provider definition, and does its contract allocate product liability? Our UK and EU fulfilment partner checklist covers the wider selection checks.
4. Indemnities. Expect your EU partners to ask the brand for indemnities. What have you already agreed, and with whom?
5. Insurance. Does your product liability policy name the EU territories you sell into and the operators acting for you?
6. Technical documentation. Can you produce test reports, risk assessments and the current technical file for each model quickly if a court orders disclosure?
7. Update policy. For connected products, who pushes security updates, and where is each safety-update decision recorded?

Clayton Utz's preparation guidance for Australian manufacturers covers similar ground, with more on lifecycle records.

How Scale With handles this as part of EU set-up

We regularly see brands arrive with compliance they believe is in order, and in most cases something is missing.

As part of EU set-up, we map the importer of record, authorised representative, GPSR responsible person and 3PL against each stock flow. We check that the contract behind each role matches what that business actually does, and that the product file can be produced when asked.

One US electronics brand came to us having already spent around £100,000 on a UK and EU entry that had not worked. We rebuilt the VAT and compliance structure and recovered a five-figure VAT rebate. For a UK consumer products brand, a country-by-country EU compliance audit covering WEEE, batteries and packaging found gaps before Amazon could suppress a listing over them.

The outcome is a brand that knows which entity carries which role, has contracts and insurance that reflect it, and can answer a disclosure request without a scramble.

If you want your importer, authorised representative and 3PL set-up checked before 09/12/2026, talk to us about your EU set-up.

Frequently Asked Questions

When does the new EU Product Liability Directive apply?

It applies to products placed on the EU market or put into service from 09/12/2026. Earlier products stay under the 1985 Directive.

Is the authorised representative only liable if there is no importer?

No. Where the manufacturer is outside the EU, a claimant can pursue the EU importer and the authorised representative, alongside the manufacturer. Only the fulfilment service provider is a fallback, liable where neither is established in the EU.

Can a 3PL be liable under the Product Liability Directive?

A 3PL that offers at least two of warehousing, packaging, addressing and dispatching, without owning the product, is a fulfilment service provider. It can be liable where no importer or authorised representative is established in the EU. This has not yet been tested in court.

Can a brand limit product liability by contract?

No, not towards the injured person, whose claim cannot be limited or excluded by contract. Businesses in the chain can still agree indemnities and how the cost is shared between them.

Is my GPSR responsible person automatically liable?

Not automatically. Liability attaches to the importer, authorised representative or fulfilment service provider role. In practice the GPSR responsible person usually holds one of those roles, so it may also be a defendant in a claim.

Last verified: 16/10/2026