Product liability: your file determines your coverage

What product liability is

Product liability is strict liability. If a defective product causes damage, the manufacturer is liable for it, regardless of whether they are at fault. In the Netherlands, this rule is set out in Article 6:185 of the Civil Code, which is based on European legislation.

This is a different regime than ordinary breach of contract. The injured party does not need to prove negligence, only the defect, the damage, and the causal link between them. Your diligence is therefore no defense; your product determines the outcome.

Liability insurance covers this risk. The premium usually depends on your turnover and your industry. The coverage depends on what is stated in the policy.

What changes as of December 9, 2026

Directive (EU) 2024/2853 replaces the 1985 regulation. The old directive will be repealed effective December 9, 2026, but remains applicable to products placed on the market before that date. Member States must transpose the new rules by that date at the latest.

Consequently, two regimes will exist side by side, separated by the date the product was placed on the market. For your file, this means: record when a product was first placed on the market, as that determines which law applies.

Furthermore, the directive was drafted with a view to products that have become technically more complex. One of the reasons was that injured parties have difficulty gathering evidence in the case of new technology.

Record the date of placement on the market

In the future, this date will determine which regime a claim falls under. Therefore, register per article number when the product first came onto the market. Keep that date with the file. This is a small administrative step with significant consequences in the event of a dispute.

Software is now considered a product

The directive clarifies that software is a product for the purposes of strict liability. This applies regardless of the method of delivery or use, whether the software is on the device, available via a network, or provided from the cloud.

Mentioned are, among others, operating systems, firmware, computer programs, applications, and artificial intelligence systems. Software integrated as a component in another product is also covered.

If you sell a device with an app or firmware that you have developed, this is no longer a marginal issue in your file. A defect in that software can lead to the same liability as a defect in the housing.

Why your file determines your coverage

In the event of a claim, your insurer assesses not only the damage but also your documentation. If it proves to be incomplete or invalid at the time of the loss, they may refuse coverage. The premium you have been paying for years does not change that.

This makes the file more than just an obligation to the regulator. It is also the piece of evidence with which you demonstrate to your insurer that you placed the product on the market lawfully.

The practical test is simple. Could you, today and without preparation, provide the declaration, the file, and the test reports for your best-selling product? If not, your coverage is less certain than your policy suggests.

Is your file resistant to a claim?

Briefly let us know which product is involved. We will contact you regarding what we can do and the associated costs.

Who can be held liable

Not just the factory. Anyone selling a product under their own brand is considered a manufacturer. The importer who brings the product into the Union can also be held liable. Your position in the supply chain determines your risk, not the question of who actually made the product.

For private labels and imports, that is the decisive point. You are not just buying stock; you are buying the liability along with it. The price of the product says nothing about the extent of that risk.

What goes wrong in practice

We encounter three situations most frequently: a policy that runs for years without the documentation ever being tested; a file that still refers to an older version of the product; or a declaration of conformity that does not name all applicable legislation.

Documentation never tested. You pay a premium for coverage where the condition has not been verified.
File lags behind the product. After a design change, the evidence refers to a version you no longer sell.
Incomplete declaration. If an applicable act is missing, you are declaring less than you are selling.
Software overlooked. Firmware and apps will explicitly belong to the product as of December 2026.

What you need to arrange

Test your documentation before you need it. Take your three best-selling products and check whether the declaration, the file, and the reports match what is currently in the box. Then, record for each article when it was first placed on the market.

Check for each top product whether the declaration, file, and test reports are up to date and belong together.
Register the date of first placement on the market per article number.
Identify which products contain software or firmware and who supplies them.
Read in your policy which conditions are set for documentation.
Schedule a fixed time each year to compare the file against the current product.

For the insurance aspect itself, we refer you to your own advisor. We assess the documentation on which that coverage is based.