The Dutch market is very challenging for new products. Always check the legal framework of the Dutch market. Therefor I will give a brief introduction to Dutch Product Liability.
Dutch law on Product liability
Apart from general negligence claims under Dutch law, a producer could also be exposed to claims made under art. 6:185 of the Dutch Civil Code, the provision for product liability in the Netherlands. Article 6:185 is an implementation of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.
European Product Liability
My comment may also be taken as an indication of the position in other EU Member States, however it is expressly noted that these principles may have been implemented differently in other EU member states. For any claim or defense regarding product liability it is advisable to consult a Dutch attorney timely to discuss risks and caveats under Dutch law.
Procedure on defective product
Under article 6:185 of the Dutch Civil Code, a producer is liable to consumers (both the buyers and third parties) for any loss or damage caused by a defective product if there is damage within the meaning of article 6:185 of the Dutch Civil Code, unless the manufacturer can rely on certain exceptions set out in the same article. A product will be “defective” within the meaning of article 6:185 if it “does not provide the safety which a person is entitled to expect”; relevant considerations include the way the product is presented, reasonable expectations of its use, and the time when it was put into circulation. The burden of proof under Dutch law is on the claimant to prove that the presence of 1) damage, 2) defect, and 3) a causal relationship between the damage and defect of the product.
Producer and Dutch Liability
Article 6:186(1)(b) Dutch Civil Code provides that a product will be defective if it fails to provide the safety that one might have expected of it, taking all circumstances into consideration. Article 6:185 provides for liability on the part of the “producer”. For the purposes of this article, a producer means a manufacturer of a finished product or component(s) of a product, a producer of raw materials, an “own brander” (anyone who by putting his name, trademark or other distinguishing sign or feature on the product holds himself put as its producer), or an importer into the EU; and, in case a producer cannot be identified: the supplier. Given the extremely broad definition of “producer” for product liability purposes, we are of the view that the Company (or its affiliates) will easily fall under the definition of the Product’s producer.