What the New EU Product Liability Directive Means for Consumers

For nearly thirty-five years, anyone in Ireland injured by a defective product has had two main legal routes to compensation: a claim in negligence at common law, and a claim under the strict liability regime created by the Liability for Defective Products Act 1991. That 1991 Act, which gave effect in Ireland to a European directive dating from 1985, has served claimants reasonably well in cases involving traditional consumer goods, machinery, vehicles, and pharmaceuticals. However, it was drafted in a world before smartphones, smart appliances, software updates, and artificial intelligence, and it has begun to show its age.

That is about to change. By 9 December 2026, Ireland must transpose the new EU Product Liability Directive 2024/2853 into Irish law. The new regime will replace the 1991 Act for products placed on the Irish or wider EU market on or after that date, and it represents the most significant overhaul of product liability rules in almost forty years. We believe the changes will, on balance, make it easier for injured consumers to pursue claims against manufacturers and other businesses in the supply chain.

The current law and why it is being replaced

Under the 1991 Act, a “producer” is strictly liable for damage caused by a defective product. Strict liability means that an injured person does not have to prove negligence or fault on the part of the manufacturer. They simply have to prove three things, namely the existence of a defect in the product, the damage suffered, and a causal link between the two. As the European Commission has noted, this no-fault framework has been a cornerstone of EU consumer protection since 1985.

At McCarthy + Co Solicitors LLP, we have assisted many injured claimants with pursuing compensation under the 1991 Act strict liability route. This has been particularly effective in cases involving:

• Defective medical devices, including hip implants, knee replacements, surgical mesh, and pacemakers.
• Pharmaceutical products with unforeseen side effects.
• Household appliances that overheat, short-circuit, or cause fires.
• Power tools, lawnmowers, and garden equipment with design or manufacturing defects.
• Defective vehicle components, including airbags and braking systems.
• Children’s toys, prams, car seats, and nursery products.

The difficulty is that the 1991 Act, like the 1985 Directive it implements, was written with tangible, physical products in mind. It does not deal clearly with software, artificial intelligence, smart devices, or digital services that are integrated with physical products. It also imposes a strict ten-year long-stop on claims, measured from the date the product was placed on the market, which has caused real injustice in cases involving slow-developing illness or latent injury. The new Directive is designed to address these and other limitations.

What changes on 9 December 2026

The new Directive does not abolish strict liability. Rather, it preserves the core principle and modernises it. The most important changes for consumers are summarised below.

A much broader definition of “product”

The Directive expressly brings software within the definition of a product, irrespective of how it is supplied or used. That includes operating systems, applications, software updates, computer programmes, and AI systems. As the European Commission has confirmed, a manufacturer can be held liable for defects that become apparent after release as a result of updates, upgrades, or machine-learning features. Free and open-source software developed outside a commercial setting is generally excluded.

Related digital services, where they are necessary for a product to function and are within the manufacturer’s control, are also covered. Examples might include the cloud-based service that allows a smart fridge to monitor temperature, or the health-monitoring service that relies on a wearable device’s sensors.

Recognition of psychological harm and loss of data

Under the 1991 Act, compensable damage essentially covers death, personal injury, and damage to certain types of property. The new Directive expressly recognises “medically recognised damage to psychological health” as a head of personal injury, and it adds destruction or corruption of data (where the data is not used for professional purposes) to the categories of recoverable loss. Where Irish law permits, non-material losses may also be compensated.

A wider range of potential defendants

The 1991 Act focuses primarily on producers and, in certain circumstances, importers and suppliers. The new Directive introduces the concept of “economic operators” and creates a clearer hierarchy of liability designed to ensure that there is always an EU-based party who can be sued.

The categories of potential defendants now include:

• The manufacturer of the finished product, of a component, or of related software.
• A person who substantially modifies a product already on the market, therefore treated as a manufacturer of the modified product.
• The importer into the EU, where the manufacturer is established outside the EU.
• An authorised representative or fulfilment service provider, where there is no EU-based importer.
• Distributors, where none of the above can be identified.
• Online platforms, in certain circumstances, where they present a product as if it were their own or as if it were supplied by someone under their control.

Easier proof in technically complex cases

One of the most significant practical changes is the introduction of rebuttable presumptions of defectiveness and causation in certain situations. The burden of proof formally remains on the claimant, but a court may presume that a product is defective where, for example, the defendant has failed to disclose relevant evidence, where the product does not comply with mandatory product safety requirements, or where there has been an obvious malfunction during reasonably foreseeable use.

Similarly, a court may presume a causal link between a defect and an injury where the damage is of a type typically associated with that kind of defect, or where a claimant faces “excessive difficulties” in proving the case because of the technical or scientific complexity of the product. As McCann FitzGerald has highlighted, this is intended to address the very real difficulty that injured persons have faced in cases involving pharmaceuticals, vaccines, and complex medical devices.

Disclosure of evidence by manufacturers

The new Directive requires national courts to be able to compel a defendant to disclose “relevant evidence” where the claimant has presented a plausible case and disclosure is necessary and proportionate. There are equivalent obligations on claimants. Irish litigation already has a well-developed discovery procedure, so this change will be less revolutionary here than in many civil law jurisdictions. Even so, it should encourage earlier and more focused disclosure of internal manufacturer documents, testing records, safety data, and post-market surveillance information, which can be decisive in product liability litigation.

Longer time limits in latent injury cases

The basic limitation period for product liability claims remains three years from the date on which the injured person became aware, or ought reasonably to have become aware, of the damage, the defect, and the identity of the relevant economic operator. There is also a long-stop, which is generally ten years from the date the product was placed on the market. However, the new Directive extends the long-stop to 25 years where the injured person could not reasonably have brought a claim within the standard ten-year period because of the latent nature of the injury.

How the transition will work

A common question we receive is whether the new rules will apply to products that are already in homes, garages, hospitals, and workplaces. The answer, broadly, is no.

The new Directive applies to products that are placed on the market or put into service on or after 9 December 2026. For products placed on the market before that date, the existing 1991 Act will continue to apply. As the Department of Enterprise, Trade and Employment has confirmed, transposition is proceeding within government, and the deadline is expected to be met. Until the implementing Irish legislation is published, however, the precise wording of the new Irish regime, and any options that Ireland exercises within the Directive, will not be finalised.

In practice, this means that for the foreseeable future, Irish courts may be applying two different product liability regimes side by side, namely the 1991 Act for older products and the new statutory framework for newer ones. Identifying when a product was placed on the market or put into service is, therefore, likely to be an important early question in any future product liability claim.

Practical implications for consumers

For an ordinary consumer, the headline message is simple. From late 2026 onwards, if a product, including a piece of software or a smart device, causes injury, illness, or property damage, the legal framework for seeking compensation will be more modern, more comprehensive, and in many respects more claimant-friendly than the regime that has applied since 1991.

There are several practical points that we suggest keeping in mind:

• Keep receipts, packaging, instruction manuals, and proof of purchase for significant items, particularly electrical goods, medical devices, and children’s products.
• If an injury occurs, preserve the product itself in the condition it was in at the time of the incident wherever possible, as expert examination is often crucial.
• Take photographs of the product, the scene, and any injuries as soon as it is safe to do so.
• Keep records of medical treatment, attendance at A&E, GP visits, prescriptions, and any time off work.
• Report serious incidents to the Competition and Consumer Protection Commission and, where relevant, to the manufacturer or retailer in writing.
• Take legal advice promptly, as the three-year limitation period can pass quickly, particularly where injuries are serious or ongoing.

It is also worth remembering that, in personal injury cases, the Injuries Resolution Board (formerly PIAB) will normally need to assess most claims before court proceedings can issue. Product liability claims are no exception, although certain claims, particularly those involving complex medical or technical issues, may be exempted.

Require legal assistance with a product liability claim?

At McCarthy + Co Solicitors LLP, we have extensive experience in advising clients who have been injured by defective products, including medical devices, pharmaceuticals, household goods, vehicles, and industrial equipment. Whether your potential claim is governed by the existing Liability for Defective Products Act 1991 or by the new regime that takes effect on 9 December 2026, our product liability team can assist. Arrange a confidential, no-obligation consultation with a solicitor by completing our quick online form.