NetherlandsImplementatiewet richtlijn herziening productaansprakelijkheid (Bill 36906), Implementation of Directive (EU) 2024/2853
Implementatiewet richtlijn herziening productaansprakelijkheid, Kamerstuk 36906
In committee, dated , as of .
A product liability rule binding public and private bodies.
- Private right of action
- Yes
As of .
Where it has got to
The text described here is Voorstel van wet, Kamerstuk 36906, nr. 2. That print is 36906-2, published .
Locally, this stage is aanmelden voor plenaire behandeling.
The stage above is recorded at www.tweedekamer.nl.
On the committee procedure meeting decided to register the bill for plenary treatment in the Tweede Kamer. The Tweede Kamer listed the bill among the hamerstukken of its sitting of , and its record shows the vote stage as not completed.
What it requires
- The bill excludes free-of-charge and open-source software (gratis en opensourcesoftware) that you develop or supply outside the course of a commercial activity (Art. 6:184a(3)(a)).
- If you develop, manufacture or produce a product, software included, or present yourself as its manufacturer by putting your name or trade mark on it, you answer as its manufacturer for damage a defect in it causes (Arts. 6:184a(1)(b) and (e), 6:187(1)(a)).
- Keep supplying the software updates and upgrades needed to maintain safety while the product is within your control: a defect due to software, a related service or a missing safety update is not excused because it arose after you placed the product on the market (Art. 6:185(2)).
- Meet the product safety requirements that apply to your product, safety-relevant cybersecurity requirements included: they count in deciding whether it is defective (Art. 6:186(1)(f)), and failing a mandatory requirement that protects against the damage suffered presumes it defective (Art. 6:188(2)(b)).
- Account for what your product learns or acquires after release: the effect of any ability to keep learning or to acquire new features is weighed in deciding whether it is defective (Art. 6:186(1)(e)).
- Be ready to give access to the relevant evidence you hold when a court orders it under Articles 194 and 195 of the Code of Civil Procedure; failing to do so presumes the product defective (Art. 6:188(2)(a)).
- If you manufacture outside the Union, the importer, your authorized representative or, where neither is established in the Union, the fulfillment service provider answers for the product alongside you (Art. 6:187(1)(c)).
- If you substantially modify a product outside its manufacturer's control and then place it on the market or put it into service, you are treated as its manufacturer (Art. 6:187(2)).
- If you distribute a product, or provide an online platform that lets consumers conclude distance contracts with traders, name the liable operator established in the Union or your own supplier within one month of the injured person's request, or you answer for the defective product (Art. 6:187(3) and (4)).
- Be able to show when you placed the product on the market or put it into service: you are not liable if you did not, or if it is plausible that the defect did not exist then (Art. 6:185(1)(a) and (c)).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- How is software that is a product delimited from a related service (a digital service integrated into or connected with a product) under Article 6:184a(1)(b) and (c)?
What this law does
The bill would amend Books 6 and 7 of the Civil Code and the Transitional Act for the new Civil Code to implement Directive (EU) 2024/2853. The bill adds Article 184a to Book 6, which defines a product to include software and digital manufacturing files. The explanatory memorandum says that, for legal certainty, it is clarified that software and digital manufacturing files are to be regarded as a product.
Article 184a(3)(a) excludes free-of-charge and open-source software (gratis en opensourcesoftware) developed or supplied outside the course of a commercial activity. A corrigendum of replaces the words gratis en opensourcesoftware (free-of-charge and open-source software) with vrije en opensourcesoftware (free and open-source software) throughout the Dutch text of Directive (EU) 2024/2853.
A paragraph inserted in Article 185 makes an operator liable for a defect due to a related service, software including updates or upgrades, the lack of software updates or upgrades needed to maintain safety, or a substantial modification, to the extent the manufacturer has control over it.
Article 185(1)(e) keeps a defense where the objective state of scientific and technical knowledge did not allow the defect to be discovered when the product was placed on the market or put into service, or while it was in the manufacturer's control. Article 186(1)(f) counts relevant product safety requirements, safety-relevant cybersecurity requirements included, among the circumstances in deciding whether a product is defective.
Article 187(1)(c) makes the importer, the authorized representative and, where neither is established in the Union, the fulfillment service provider liable for a product of a manufacturer established outside the Union. Article 187(4) applies the distributor rule to a provider of an online platform that lets consumers conclude distance contracts with traders, where the conditions of Article 6(3) of Regulation (EU) 2022/2065 are fulfilled.
Article 188(2)(a) presumes a product defective if the defendant does not give access to relevant evidence it holds, as Articles 194 and 195 of the Code of Civil Procedure require. Article 188(3) presumes the causal link where the product is established to be defective and the kind of damage is typically consistent with the defect.
Article 188(4) presumes the defect or the causal link where the claimant faces excessive difficulties, in particular from technical or scientific complexity, and shows that it is likely.
Article 190 covers death, bodily or mental injury, damage to property except the defective product itself, a product damaged by a defective component that its manufacturer integrated, and property used exclusively for professional purposes, and the destruction or corruption of data not used for professional purposes.
Article 191 sets a limitation period of three years from the day the injured person became aware, or should reasonably have become aware, of the damage, the defect and the identity of the operator. Article 191a(1) ends the right to compensation ten years after the product was placed on the market or put into service. Article 191a(2) extends that period to 25 years where a latent personal injury prevented the injured person from bringing a claim within ten years.
Article 189aa, which the bill adds to the Transitional Act for the new Civil Code, keeps the present Book 6 provisions applicable, as they stood before , to products placed on the market or put into service before that date. The bill provides that it enters into force on a date set by royal decree.
When LexLint raises it
When your app profile says your app crawls the web, trains models, generates content with AI, deploys a chatbot, sends automated outreach, makes high-risk automated decisions, processes voice recordings, processes biometric data, publishes adult content, operates a social platform, serves under-18s, operates an app store, ships a mobile app, reuses other publishers' content, distributes a software product, records calls, records text chat or tracks devices.