Key Changes In The Revised German Product Liability Act

The German Federal Ministry of Justice and Consumer Protection has proposed a draft bill revising the German Product Liability Act (draft German Product Liability Act), which has been adopted by the Federal Cabinet on 17 December 2025 and is currently undergoing the parliamentary legislative process. The draft bill implements the European Product Liability Directive (EU) 2024/2853 and would represent the first major reform of German product liability law since 1989.

The draft German Product Liability Act is intended to modernise Germany’s product liability frame-work to adapt the existing legislation to new technologies, including artificial intelligence, new business models in the circular economy, and new global supply chains. In particular, the definition of ‘product’ is expanded to include software and AI technologies. The draft act also amends evidentiary rules and disclosure obligations in order to ease the burden on consumers pursuing claims. Moreover, it extends liability to a broader pool of potential defendants, including authorised representatives of manufacturers, service providers, and operators of online marketplaces.

The revised German Product Liability Act is due to enter into force on 9 December 2026 and will apply to all products placed on the market or put into service from that date onwards. Products that have already been placed on the market before this date will continue to be governed by the previous provisions.

In Depth

Expanded definition of ‘product’ under the draft act

One of the most significant changes is the explicit classification of software as a product under the draft German Product Liability Act. This should apply regardless of whether software is integrated into another product or not (for example, in the navigation service in an autonomous vehicle) or whether it is standalone software (for example, a smartphone app). The draft German Product Liability Act does not define the term ‘software’, to enable it to cover future technological developments. However, artificial intelligence systems are intended to fall within its scope.

The draft German Product Liability Act also covers components that are integrated into a product. ‘Component’ refers to any item, raw material, or associated service (such as a navigation system or a voice assistant) that is integrated into or connected with a product. Therefore, the draft German Product Liability Act encompasses (digital) services that are integrated into a product, even though it generally does not apply to services.

An exception applies to free and open-source software developed or made available outside the course of a business activity. Such software is excluded from liability to ensure that innovation and research are not impaired.

Procedural changes regarding disclosure and easier proof for claimants

The draft German Product Liability Act provides extensive procedural support for injured parties. Although claimants must still generally prove that a product was defective, that damage occurred, and that the defect caused the damage, the draft German Product Liability Act introduces new procedural tools that may reduce these evidentiary hurdles.

Disclosure of evidence

Under Section 19(1) of the draft act, a court may order the defendant to disclose relevant evidence within its control if a dispute is already pending, the claimant has filed an application, and the claimant has presented facts and evidence sufficiently supporting the plausibility of the claim. The draft therefore does not create a general pre-trial discovery procedure.

The obligation is limited to evidence relevant to the specific proceedings. It may include technical documentation, design records, testing materials, product monitoring data, and even not yet existing documents that the defendant must create by compiling/classifying information, knowledge or data that is within the defendant’s control.

To prevent excessive disclosure, Section 19(3) of the draft German Product Liability Act requires that:

• Disclosure is limited to what is necessary and proportionate.
• Courts must also take into account legitimate interests, including the protection of trade secrets. Where trade secrets are concerned, the court must apply the German Act on the Protection of Trade Secrets.
• Information classified as confidential must be treated confidentially and not be disclosed outside of court, even after the proceedings.
• The court may limit the access to the documents and oral hearings to a certain number of reliable persons (at least to one natural person from each party and their legal representatives).

If the defendant fails to comply with a disclosure order, the product is presumed to be defective under Section 20(1)(i) of the draft German Product Liability Act. The new rules therefore strengthen the claimant’s position while making reliable documentation and careful evidence management essential for defendants.

New statutory presumptions

The draft German Product Liability Act also introduces new rules easing the claimant’s burden of proof. In certain situations, the defect of a product and/or the causal link between the defect and the damage will be presumed. This shifts the burden of proof almost entirely onto the defendant company, which in turn has the right to rebut these presumptions.

In particular, Sections 20(1)(i), (ii) and (iii) of the draft act state that a product defect may be presumed where:

1. The defendant failed to comply with the obligation to disclose relevant evidence; or
2. The claimant proves that the product does not meet mandatory safety requirements of the European Union (EU) or the Member States which are intended to protect against the risk of the damage that occurred; or
3. The claimant proves that the damage was caused by an obvious malfunction of the product during reasonably foreseeable use or under ordinary circumstances.

The causal link between the defectiveness of the product and the damage will be presumed where it has been established that the product is defective and that the damage caused is of a kind typically consistent with the defect in question [cf. Section 20(2)].

Furthermore, the defectiveness of a product and/or the causal link will also be presumed if

• Despite the disclosure of evidence and taking into account all the relevant circumstances of the case, the claimant faces ‘excessive difficulties’ in proving the defectiveness of the product or the causal link, or both [cf. Section 20(3)(i)]; and
• The claimant has demonstrated that it is likely that the product was defective or that its defectiveness caused the damage, or both [cf. Section 20(3)(ii)].

The draft German Product Liability Act does not formally reverse the burden of proof and claimants remain required to establish their claim. In practice, however, in many cases, technical difficulties could result in the defendant having to rebut the presumption and prove that the product was not defective and/or did not cause the alleged harm.

Expanded liable economic operators

The draft German Product Liability Act also introduces an expanded list of potential defendants. The injured party can no longer only bring a claim against the manufacturer, so-called quasi-manufacturers, and importers based in the EU, but also against authorised representatives of the manufacturer, fulfilment service providers (such as packaging or shipping service providers), and even retailers and operators of online marketplaces, if a previous economic actor in the supply chain cannot be identified (the ‘Amazon Clause’).

Manufacturers of a defective product will continue to be the primary liable parties. This includes:

• Individuals and legal entities who develop, manufacture, or produce products, even if they create products solely for their own use.
• Anyone who designs a product or has it manufactured and then attaches their name or trademark to it (‘quasi-manufacturer’).
• Any person who substantially modifies a product outside of the manufacturer’s control.
• Manufacturers of a defective component (where that component has been integrated into, or inter-connected with the product).

If the manufacturer is established outside the EU, claims can also be brought against:

• Importers and authorised representatives (cf. Section 10).
• Fulfilment service providers which are defined as individual or legal entities that commercially offer at least two of the following services: warehousing, packaging, addressing, and dispatching of products that they do not own (cf. Section 10).

If the claimant is unable to identify the manufacturer or, in the case of manufacturers outside the EU, any of the aforementioned companies, under certain conditions, any supplier of the product can be held liable for the damage [cf. Section 12(1)]. In certain cases, online marketplace operators may also be held liable if they present themselves as offering the product (cf. Section 13).

Outlook and key actions for companies

The new German product liability regime marks a significant shift in Germany’s product liability landscape. It aims to strengthen acceptance and trust in emerging technologies, including AI, by enhancing legal certainty and ensuring equal competitive conditions within the EU, with the goal of supporting innovation and the further development and use of such products within the EU.

At the same time, new regime seeks to ensure that injured parties benefit from the same level of protection, regardless of the technology involved. However, it may place a significant burden on companies due to extensive disclosure obligations and broad presumption rules. It is also uncertain how courts will interpret and apply the new regime in practice, as the draft act contains numerous vague legal terms and new presumption rules that are formulated in an extremely broad manner and have the potential to create significant problems when interpreting and applying their requirements in practice.

To address the broader liability risks under the new German product liability regime, companies should consider a number of practical measures. In particular, they should:

• Assess whether their products – especially software, AI systems and connected digital services – fall within the expanded product definition.
• Review their role in the supply chain and determine whether they may be exposed to liability not only as manufacturers, but also as importers, fulfilment service providers, suppliers, or online platform providers.
• Ensure that technical documentation, product monitoring data, and other relevant records are complete, accessible, and suitable for potential disclosure proceedings.
• Review supplier and distribution agreements to address extended liability risks and, where appropriate, include cooperation obligations and indemnity clauses.
• Reassess their product liability insurance in light of the broader exposure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.