Introduction
On 16 October 2026, the draft act (the “Draft Act”) to transpose Directive 2024/2853 of the European Parliament and of the Council of 23 October 2024 on liability for defective products and repealing Council Directive 85/374/EEC (the “new EU PLD”) into Belgian law was submitted to the Belgian Parliament (DOC 56 1784/001).
This regime provides for no‑fault liability of the manufacturer or another economic operator for damage caused by a defective product.
The current draft transposes the new PLD into Belgian law by amending Articles 6.41 to 6.55 of the Civil Code and inserting a new Article 877/1 in the Judicial Code.
As for the new EU PLD, the Draft Act modernises the strict product liability regime, clarifying how the regime applies to digital and connected products, broadening the defendant pool, expanding recoverable damage and facilitating proof.
Because article 3 of the new EU PLD prohibits both more protective and less protective national departures within its harmonised field, except where expressly permitted, the Draft Act aims at implementing it faithfully.
Overview of the major changes introduced by the draft Act
What is a product?
Current art. 6.42 focuses on tangible movables and electricity. The proposed new art. 6.42 inserted by the Draft Act now also lists gas, water and raw material. It was already admitted that software is a “product” in Belgium for the purpose of the product liability regime but the proposed art. 6.42 now expressly includes it (including AI systems) in the list of products. Non-commercial free and open-source software developed or supplied outside the context of an economic activity is excluded from the scope of the Draft Act (in line with what provides the new EU PLD). The proposed art. 6.47 treats functionally necessary connected digital services as components.
Another notable development is the classification of digital manufacturing files (such as CAO or CAD files) as products, in line with the new EU PLD. Although digital files are generally not regarded as products, the EU authorities took the view that digital manufacturing files are digital versions of movable goods and, if defective, can cause damage when executed.
What is a defect?
The objective safety-expectations test remains, but proposed art. 6.43 inserted by the Draft Act expressly adds in the “defect” test (in line with the new EU PLD), additional criteria as: legally required safety, cybersecurity, learning capabilities, interconnection, recalls (see ECJ, Boston Scientific Medizintechnik cases C-503/13 et C-504/13), and vulnerable user groups.
The new EU PLD also seeks to align with the General Product Safety Regulation (Regulation (EU) 2023/988). However, the interaction between the two instruments is not always clear, and the Draft Act provides no further clarification in this regard.
Potential defendants (relevant “economic operators”)
To address “the effects of the opacity or fragmentation of responsibilities” in modern supply chains, the EU legislature has extended the circle of potentially liable persons.
The existing manufacturer/importer/supplier model expands to authorised representatives and, where no EU importer or representative exists, fulfilment service providers (proposed art. 6.47).
Distributors who want to avoid facing product liability actions by identifying the manufacturer/importer against whom the claim should be directed, now face a one-month identification requirement (proposed art. 6.47 § 3, 1°).
Certain online platforms may incur analogous liability, but only where their role corresponds to that of a defined economic operator; or where specific conditions are met; online platforms are not liable as a general rule (proposed art. 6.47 § 3, 2°).
In the context, among other things, of the circular economy, it is also stipulated that “substantial” modifiers operating outside the original manufacturer’s control qualify as “manufacturers” (proposed art. 6.47 § 2).
A system that facilitates the proof
The new EU Product Liability Directive (EU PLD) requires Member States to provide for an “disclosure” procedural measure (Article 9 EU PLD). In the context of product liability proceedings, a claimant (injured person) will be entitled to request the court to order the defendant (the economic operator) to disclose relevant evidence in its possession. The court may only grant such a measure where the applicant has rendered the claim for compensation plausible. A similar measure may be sought in reverse, where the defendant requires information from the claimant in order to contest the claim.
The existing mechanism for the disclosure of documents in the Belgian Judicial Code (Article 877) imposes different requirements for an order to disclose documents. These conditions, which aim, inter alia, to prevent fishing expeditions by requiring the requesting party to identify the documents (containing evidence of a relevant element) sought and provide serious and precise indications that they are held by the other party or a third party, have been considered too restrictive for implementation of the new EU PLD. Consequently, and without excluding the parallel application of Article 877 (subject to its stricter conditions), the Belgian Act inserts a new provision in the Judicial Code (Article 877/1), specifically for the purpose of implementing Article 9 of the new EU PLD. Under this new procedural measure, the request for evidence can only be directed against the other party (defendant or the claimant), not against a third party.
The evidence requested, and its disclosure, must be necessary and proportionate. If the documents to be disclosed contain confidential information or trade secrets, measures may be taken to limit the adverse consequences of this (among others, but not limited to, the measures aimed at protecting trade secrets under article 871bis of the Judicial Code).
Rebuttable legal presumptions
Current art. 6.46 requires proof of damage, defect and causation.
Proposed art. 6.46 as inserted by the Draft Act retains that starting point (§1), but adds (§3) rebuttable presumptions of defect when:
- The economic operator fails to comply with an order to disclose documents under Art. 877/1 Judicial Code.
- The product does not comply with mandatory product safety requirements laid down in legislation or Union law.
- The damage was caused by an obvious malfunction of the product during reasonably foreseeable use or under normal conditions.
There is a rebuttable presumption of causation (§3) where the defect has been established and the type of damage suffered “typically corresponds” to the defect concerned.
There is a rebuttable presumption of causation and/or defectiveness (§4) where:
- the injured person, with access to the disclosed evidence in accordance with Art. 877/1 Judicial Code, demonstrates that it is likely that the product is defective and/or that there is a causal link between the defect in the product and the damage.
- the injured person, despite having access to the disclosed evidence in accordance with Art. 877/1 Judicial Code, faces excessive difficulties in proving the defect or the causal link because of the complex nature of the product, the technology or the causal link.
These presumptions can be reversed by the defendant but place the burden of proof on the economic operators, rather than the claimant. Having to demonstrate that there is no defect or causal link, is negative proof that can be difficult to provide in practice.
Possible defences
The defence means available to the defendant remain broadly similar to what they are now.
Article 11(1)(e) of new PLD sets out the development risk defence as the rule, but Article 18 allows Member States to derogate from that rule. The Draft Act does not make use of such derogation. Manufacturers can still avoid liability by proving that, having regard to the objective state of scientific and technical knowledge at the time when the product was placed on the market, it was not possible to identify the defect while the product was still under the control of the manufacturer (proposed art. 6.49, 5°).
Proposed Article 6.49 § 2 nevertheless provides that an economic operator is not exempt from liability where a product defect is attributable to (1°) a related service; (2°) software, including software updates or upgrades; (3°) a lack of software updates or upgrades necessary to maintain safety; or (4°) a substantial modification of the product, provided that the product remains under the manufacturer’s control. This suggests a degree of ongoing responsibility on the part of the manufacturer, limited to those circumstances, for as long as the product remains under its control.
Compensable damage
The proposed art. 6.45 abolishes the EUR 500 deductible for liability for damage to property.
While damage to the defective product itself remains entirely excluded, damage to other property is now covered even where that property is used for both private and professional purposes. Only property used exclusively for professional purposes is excluded.
The destruction or corruption of data “used for private purposes” is also covered (Article 6(1)(c) of the new EU PLD uses the clearer formulation “not used for professional purposes”).
Both material and non-material losses should be compensated (proposed art 6.45 § 2).
Limitation period extended to 25 years in case of latent injury
Another innovation is the introduction of a limitation period of 25 years in the event of a latent illness that did not allow the injured person to bring proceedings within 10 years (proposed art. 6.52, § 1, also in line with the new EU PLD - see in that respect, ECJ, LF v. Sanofi Pasteur, C‑338/24).
Preserved remedies
Proposed Article 6.53 broadly preserves a claimant’s right to bring contractual and non-contractual claims on grounds other than product defectiveness. Article 2(4)(b) of the new EU PLD likewise safeguards claims based on such alternative grounds. The established distinction between harmonised product liability, liability based on genuinely different grounds, and service-provider liability therefore remains relevant (see ECJ, Commission v France, C-52/00; Dutrueux, C-495/10).
Application of the new rules
The Draft Act (art. 20) will enter into force on the date of its publication in the Belgian Official Gazette (Moniteur belge / Belgisch Staatsblad). Its provisions (the new regime) will apply to all damage caused by a defective product after that date.
