Today’s guest post comes from three Reed Smith colleagues and fellow European Union Product Liability Directive nerds, Jamie Lanphear, Greg Speier, and Wim Vandenberghe. As always, our guest posters get all the cheers for their work along with any jeers, though those are hardly likely.
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The Blog has been sounding the alarm on the EU’s new Product Liability Directive (“PLD”) for almost two years now—and with good reason.
For those just tuning in, the PLD is the most sweeping reform of EU product liability law in four decades—expanding the definition of “product,” introducing claimant-friendly presumptions of defect and causation, broadening disclosure obligations, and extending the categories of recoverable damage. The Directive requires all 27 EU Member States to transpose it into national law by December 9, 2026. It applies to products placed on the market or put into service after December 8, 2026 (a typo was recent corrected in the original text, which had stated December 9).
Over the past year and a half, the Blog has covered the Directive’s overhaul of EU product liability law (see, e.g., here, here, here, and here, ), including its implications for software and digital products (here), its expanded disclosure obligations and the risks they pose to privileged communications (here), and what the European Commission itself has said about its goals for the new regime (here).
This post is about implementation—where each Member State stands with fewer than four months to go, and where meaningful national divergences are emerging that will shape litigation risk on day one. The short version: three Member States have completed transposition, twelve more have draft legislation in the pipeline, and the rest are somewhere between initial steps and radio silence.
Where Things Stand
Member State transposition efforts fall into four categories.
Completed Transposition: Hungary, Croatia, and Lithuania have completed transposition. Hungary was first, with its parliament adopting the implementing law on December 16, 2025. Croatia followed on July 7, 2026, amending its Civil Obligations Act and notifying the Commission. Lithuania’s Seimas adopted its bill on June 25, 2026, as Act XV-1080, with an entry-into-force date of December 9, 2026.
Well Underway: Twelve Member States have prepared draft legislation: Belgium, Cyprus, Czech Republic, Denmark, Finland, Germany, Italy, the Netherlands, Poland, Slovakia, Slovenia, and Sweden. Germany, Slovakia, and the Netherlands are furthest along—each is in parliamentary process and tracking toward adoption this fall. Belgium, Italy, and Slovenia entered the pipeline more recently but are moving. The remainder have drafts in various stages of consultation and review.
Early Stages: Austria, Bulgaria, Estonia, France, the Republic of Ireland, Latvia, and Romania have taken initial steps toward transposition but have not yet published draft legislation. Austria expects to submit a draft to parliament this fall. Bulgaria is preparing draft legislation, with submission to the Council of Ministers expected in September. Estonia expects a government proposal to reach parliament in September 2026. France has confirmed an interministerial working group and stakeholder consultations, but no published text yet.
No Known Public Movement: Greece, Luxembourg, Malta, Portugal, and Spain have made no known public progress toward transposition.
Key Divergences to Watch
This is where it gets interesting. The PLD is a maximum-harmonization directive, meaning that Member States generally may not adopt more or less stringent rules than those set forth in the Directive. But the PLD expressly leaves room for national discretion in certain areas. In others, differences emerging in national implementing legislation raise questions about whether Member States have gone beyond the discretion the Directive allows.
Development Risk Defense: This defense—also known as the “state-of-the-art” defense—protects manufacturers from liability if the scientific and technical knowledge at the time the product was released was such that the defect could not have been discovered. Article 18 expressly permits Member States to depart from this defense. Most drafts retain it, but there are some exceptions: Finland will continue its longstanding exclusion of the defense. Hungary limits the defense for medicinal products used as instructed. Germany retains the defense, subject to its existing carve-out for genetic engineering products.
Non-Material Damages: The PLD expressly leaves aspects of damages to national law. Recital 23 provides that non-material losses—such as pain and suffering—are compensable to the extent permitted under national law. As a result, the availability and calculation of non-material damages will continue to vary across Member States, even under the PLD’s maximum-harmonization framework. That variable will likely shape forum-shopping decisions.
The “Excessive Difficulties” Threshold: This one is particularly concerning. Article 10(4)(a) allows courts to presume defectiveness and causation where a claimant faces “excessive difficulties” in proving those elements due to technical or scientific complexity. Finland and Sweden have removed the word “excessive” in their implementing proposals, arguably lowering the threshold for claimants to trigger the presumptions.
However, unlike the development risk defense and non-material damages, the PLD does not expressly authorize Member States to vary this threshold. Whether these divergences represent permissible implementation choices or conflict with the Directive’s maximum-harmonization requirement may ultimately require judicial resolution. But in the meantime, they create exactly the kind of patchwork that encourages forum shopping—claimants filing in the jurisdiction with the most favorable presumption standard.
Disclosure: As we discussed in a prior post, the PLD’s disclosure requirement is a significant development, particularly for jurisdictions that have historically had little or no pre-trial discovery. Member States are taking different approaches. Some are adopting new, PLD-specific disclosure provisions, while others are relying on existing procedural rules.
Regardless of approach, Article 9 requires courts to have authority to order that disclosed evidence be presented in an easily accessible and understandable manner. Belgium’s government has expressly acknowledged that the PLD disclosure requirement goes beyond existing document production under Article 877 of the Judicial Code. The Directive also contemplates that compliance may require compiling or classifying evidence into a comprehensible presentation—not simply producing documents as they exist. That is an obligation that will be new to many defendants.
Distributor Liability: Denmark proposes to keep its existing fault-based distributor liability rules within the PLD framework. Once the injured party proves defect, damage, and causal link, the burden shifts to the distributor to prove it did not make the product dangerous. Whether those rules fall entirely outside the PLD’s maximum-harmonization requirement may become an important issue as distributors defend claims under the new framework.
What This Means
The PLD’s transposition process is unfolding largely as expected: most Member States are hewing close to the Directive’s text, and late movers will likely copy-paste their way to compliance. But the divergences that are emerging—on defenses, the “excessive difficulties” threshold, and disclosure—are important to note. They will create different litigation environments across the EU, and they will shape where claimants choose to file.
For defense lawyers, the practical takeaway is straightforward: do not treat the PLD as a single, uniform regime. Map the differences. Monitor the late transposers. And prepare for the likelihood that the first wave of litigation under the new rules will be as much about testing the boundaries of national implementation as it is about the underlying claims.
December 9 is coming. The question is no longer whether the PLD will change the landscape. It is how—and where—the changes will land first.