On 9 December 2026, Europe replaces a product liability directive that dates from 1985. The new Product Liability Directive, Directive (EU) 2024/2853, “shall apply to products placed on the market or put into service after 9 December 2026.” Two of its changes matter directly to anyone building connected machines: software now counts as a product, and a manufacturer that fails to disclose relevant evidence can find its product presumed defective.
Put those together and the operating record of a machine stops being purely an engineering asset. After an injury, it is evidence, and the law now has a clear view about what happens if you hold it and do not produce it.
Key Takeaways
- The new EU Product Liability Directive applies to products placed on the market or put into service after 9 December 2026.
- Software now falls within the definition of a product, and a product can remain within the manufacturer’s control after sale while it can still receive updates.
- Courts can order a manufacturer to disclose relevant evidence, and failing to do so can lead to the product being presumed defective.
- Damage to property used exclusively for professional purposes is excluded, so for industrial equipment the claims that matter most are injury claims.
What Actually Changes, and What Does Not
The underlying principle is familiar: a manufacturer is liable for damage caused by a defective product, without the injured person having to prove fault. What changes is the reach of that principle and the rules of evidence around it.
It is worth being precise about scope before going further. The right to compensation covers death and personal injury, and damage to property, but not damage to “property used exclusively for professional purposes.” For a manufacturer of industrial equipment, that means a machine damaging a customer’s production line is largely outside this Directive. An operator or bystander being injured by the machine is squarely inside it.
That narrows the question considerably, and it is the question worth preparing for.
Software Is Now a Product
The Directive defines a product as “all movables, even if integrated into, or inter-connected with, another movable or an immovable,” and states that “it includes electricity, digital manufacturing files, raw materials and software.”
For connected machinery, that brings the firmware and control software inside the liability frame alongside the steel. The Directive’s recitals also address what happens after sale: a product “should be considered to remain within the manufacturer’s control where the manufacturer retains the ability to supply software updates or upgrades itself or via a third party.”
Among the factors a court weighs when judging whether a product is defective is the moment the product left the manufacturer’s control, and, where the manufacturer retains control after sale, that later moment. A machine that can still receive updates is, in this sense, still partly yours.
The Evidence You Hold Can Be Ordered Into Court
The Directive’s disclosure rule is short and consequential. Where a claimant “has presented facts and evidence sufficient to support the plausibility of the claim,” the manufacturer “is required to disclose relevant evidence that is at the defendant’s disposal.” Courts must limit this to what is necessary and proportionate, and protect trade secrets.
The consequence of not complying is set out plainly. Defectiveness “shall be presumed” where the defendant “fails to disclose relevant evidence.”
For a connected machine, relevant evidence plausibly includes what the machine recorded: its operating hours, its electrical behaviour, its fault history and the conditions before an incident. A manufacturer that collects that data should assume it may be asked for it.
The Same Record Can Work in Your Favour
It would be easy to read the disclosure rule as a reason to collect less. That misreads the Directive in two ways.
First, disclosure runs in both directions. A manufacturer that shows its need for evidence to counter a claim can ask the court to require the claimant to disclose relevant evidence too.
Second, the questions a court weighs are often questions an operating record can answer. Defectiveness is assessed against factors including “reasonably foreseeable use of the product.” Whether a machine was being used within its design envelope, whether it had been maintained, whether it had run for thousands of hours without incident, or whether its behaviour changed after an unapproved modification, are all matters of fact. A manufacturer with no record has only testimony. The same principle, that verified hours settle disputes that recollection cannot, runs through how manufacturers reduce the cost of warranty claims.
Updates Are Part of the Liability Picture
The Directive’s recitals single out one situation where a manufacturer’s usual defence narrows. Normally a manufacturer can escape liability by showing that a defect came into being after the product left its hands. The recitals state that this possibility “should be restricted when a product’s defectiveness consists in the lack of software updates or upgrades necessary to address cybersecurity vulnerabilities and maintain the safety of the product.”
In practice, that makes two things worth being able to show for every machine in service: which updates it received, and when. A manufacturer that cannot say whether a safety-relevant update reached a particular unit is poorly placed to argue about it later.
The Directive also notes that a product is not defective “for the sole reason that a better product, including updates or upgrades for a product,” has since been released. Improving a product does not, by itself, condemn the earlier version.
What to Prepare Before December 2026
Decide what operating data your machines record, and for how long you keep it. Make sure you can retrieve the record for a specific unit quickly and in a form a court could understand; the Directive allows courts to require evidence to be presented “in an easily accessible and easily understandable manner.” Keep a clear history of which software updates each machine received. And align your data retention and privacy commitments with the fact that this record may one day be requested.
This is general information rather than legal advice, and the Directive must be transposed into national law in each member state. Take specific advice for your products and markets.
Where ARMOR™ Fits
ARMOR™ records what a machine did, from the machine itself. ARMOR 4+™ reports runtime hours, voltage and current into ARMOR Asset Central™, building a continuous, time-stamped record for each unit rather than a reconstruction from service notes.
That record is the kind of factual evidence the questions above depend on: how long a machine had run, how it was behaving, and when it went quiet. ARMOR™ does not provide legal advice, does not decide what a manufacturer should retain or disclose, and does not make a product compliant with any liability regime. It gives the manufacturer a factual operating history to work from.
The unit installs non-destructively on standard wiring harnesses, with no bill-of-materials redesign. How it is built in at the production stage is described on the ARMOR™ for Equipment Manufacturers page.
Frequently Asked Questions
Does this apply to machines we have already sold?
No. The Directive applies to products placed on the market or put into service after 9 December 2026. Products placed on the market before that date remain under the previous regime.
Should we collect less data to reduce our exposure?
That is a decision for your legal advisers, but consider both sides. Data you hold can be ordered into court, and a missing record also leaves you without facts on reasonably foreseeable use, maintenance and modification, which are often exactly what a defence needs.
Is damage to a customer’s other equipment covered?
Generally not under this Directive, which excludes property used exclusively for professional purposes. Commercial losses between businesses are usually governed by contract and national law instead.
We sell only outside the EU. Does this matter to us?
Only for products that reach the EU market, including through distributors or customers who export. Where the manufacturer is established outside the EU, the Directive makes the importer and the manufacturer’s authorised representative liable as well, so your European partners carry the exposure alongside you.
See how ARMOR™ is built into equipment like yours, at the build stage. ARMOR™ for Equipment Manufacturers
