NETHERLANDS Law and Practice Contributed by: Eva Schothorst-Gransier, Claims Made Advocatuur
Proceedings or Co-Ordinated Proceedings in Product Liability Claims . 2.6 Rules for Preservation of Evidence in Product Liability Claims As of 1 January 2025, procedural law in the Neth - erlands has been updated to simplify evidential law. This modernisation applies broadly, includ - ing to product liability cases. Articles 205 and 206 of the Dutch Code of Civil Procedure (DCCP) introduce the option for seizure to preserve evi - dence. Additionally, if requested by an interested party, the interim relief judge may authorise the preparation of an official report to document facts that the bailiff has personally observed in a location not accessible to the public. Apart from these procedural changes, one needs to take into account the statutory reten - tion period for technical files, etc. Furthermore, it is advisable to preserve a number of products and documents relating to product compliance. 2.7 Rules for Disclosure of Documents in Product Liability Cases The new Dutch procedural legislation has revised the previous disclosure regime outlined in Article 843a of the DCCP. This updated regime is now reflected in Articles 194-195a and 204 of the DCCP. The primary principle of the new regime is that a request for the disclosure of documents, whether made during or before trial, will be granted unless an exception applies. Addition - ally, disclosure can be requested from another party, even in the absence of a legal relationship. The criterion for making a disclosure request is having sufficient interest. Some Dutch authors believe this change has lowered the threshold for requests that previously required a legitimate interest.
New Product Liability Directive The new Product Liability Directive 2024/2853 introduces a fresh disclosure regime. According to the new PLD, claimants only need to present facts and evidence to support the claim’s plau - sibility for compensation to obtain disclosure of relevant evidence. The defectiveness of a product is presumed in case the defendant fails to disclose relevant evidence. Defendants can also request disclosure of relevant evidence and need to present facts and evidence sufficient to demonstrate the defendant’s need for evidence to counter a claim. When determining whether the disclosure is necessary and proportionate, national courts will consider the legitimate interests of all parties concerned, including third parties, in particular concerning protecting confidential information and trade secrets. 2.8 Rules for Expert Evidence in Product Liability Cases The parties are allowed to present expert evi - dence to support their arguments and positions. In addition, the court can appoint an expert, either upon request of one of the parties or upon its own authority. The court-appointed expert is regarded as fully independent. The expert is not permitted to have a role in the decision-making process alongside the judge. 2.9 Burden of Proof in Product Liability Cases Burden of Proof The burden of proof lies with the claimant. The injured party needs to prove the damage, the defect and the causal link between the dam - age suffered and the defect (Article 6:188 of the DCC). The same applies to a tort claim, based on Article 6:162 of the DCC, although proof of an attributable unlawful act is also required.
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