NETHERLANDS Law and Practice Contributed by: Eva Schothorst-Gransier, Claims Made Advocatuur
Articles 6:185 to 6:193 of the DCC align with European Product Liability Directive 85/374/ EEC, incorporating its provisions into Dutch law. The Product Liability Directive 85/374/EEC will be replaced by the new Product Liability Direc - tive 2024/2853 ( “new PLD” ). As the new PLD will be applicable as of 9 December 2026, Articles 6:185 DCC et seq will be amended accordingly. A bill for implementation has been proposed. 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 man - ufacturer liable for damages caused by a defec - tive product. Fault on the part of the defendant needs to be established. This article imposes no limitations on the type of damages that can be pursued and is, therefore, often utilised 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 foun - dation for handling contract breaches concern - ing defective or non-conform products. Strict product liability toward the consumer, as out - lined in Article 6:185 of the DCC, cannot be con - tractually waived; thus, any attempt in a contract with a consumer to exclude strict product liabil - ity 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 damages 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. Representa - tive bodies, such as foundations and associa - tions, can bring a collective product liability claim on behalf of a group of consumers. Companies 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 Article 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 reasonably should have become aware, of the damage, the defect and the identity of the manufacturer; this short term can easily be interrupted by sending a let - ter 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 cir - culation; 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.
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