NETHERLANDS Law and Practice Contributed by: Eva Schothorst-Gransier, Claims Made Advocatuur
The Product Liability Directive 85/374/EEC has been replaced by the new Product Liability Directive 2024/2853 (“new PLD”). As the new PLD will be appli - cable as of 9 December 2026, Articles 6:185 DCC et seq will be amended accordingly. A bill for implemen - tation of the new PLD has been proposed (nr. 36 906). The proposal includes only the provisions necessary for implementation. The chosen method of imple - mentation imposes the least burden on the business sector. The current Directive will remain applicable for products put on the market before 9 December 2026. Fault-Based Liability (Tort) Article 6:162 of the DCC is the lex generalis. It provides a general legal basis for holding a manufacturer liable for damages caused by a defective product. Fault on the part of the defendant needs to be established. This article imposes no limitations on the type of dam - ages that can be pursued and is, therefore, often uti - lised by companies. Consumers may also resort to these legal grounds when the long- or short-stop term has expired, which applies to the strict liability regime. Contractual Liability Article 6:74 of the DCC provides the legal foundation for handling contract breaches concerning defective or non-conforming products. Strict product liability toward the consumer, as outlined in Article 6:185 of the DCC, cannot be contractually waived; thus, any attempt in a contract with a consumer to exclude strict product liability would be legally invalid. 2.2 Standing to Bring Product Liability Claims Consumers who are directly affected by the product defect and who claim to have suffered damage due to the defective product can bring a claim for product liability on the basis of Article 6:185 and Article 6:162 of the DCC. Representative bodies, such as founda - tions and associations, can bring a collective product liability claim on behalf of a group of consumers. Com - panies can rely on contractual and fault-based liability (Article 6:162 of the DCC). 2.3 Time Limits for Product Liability Claims Two important limitation periods apply for a product liability claim against the manufacturer based on Arti - cle 6:185 of the DCC, as follows:
• short-stop term: this is three years from the day on which the injured person became aware, or reason - ably should have become aware, of the damage, the defect and the identity of the manufacturer; this short term can easily be interrupted by send - ing a letter to the defendant in which all rights are reserved; and • long-stop term: this is ten years from the date on which the manufacturer put the product that caused the damage into circulation; unless the injured person initiates legal proceedings within these ten years, the right to claim damages expires. For long-tail damages, a long-stop period of 25 years is introduced in the new PLD. A different limitation period applies for a fault-based liability claim based on tort: a five-year term applies from the day on which the injured person became aware, or reasonably should have become aware, of the damage and the manufacturer’s identity. This term can also easily be interrupted by sending a letter to the defendant reserving all rights. No long-stop term applies for a claim based on tort. 2.4 Jurisdictional Requirements for Product Liability Claims European Legislation For product liability, international jurisdiction is, in principle, governed by Regulation (EU) No 1215/2012, commonly referred to as the Brussels I Recast. One can be sued in court in another member state if the place where a harmful event occurred or could occur falls within the competence of that court. The place where the product in question was manufactured and the place where the initial damage occurred are referred to as Handlungsort and Erfolgsort, respec - tively. Depending on the specifics of the case, there could be some special jurisdiction rules (eg, for liability insurers). Lugano Convention 88/592/EEC governs the jurisdic - tion and the enforcement of judgments in civil and commercial matters, specifically between EU member states and Switzerland, Norway and Iceland. The Convention on Choice of Court Agreements, established in The Hague in 2005 (2014/887/EU), applies to exclusive choice of court agreements in
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