Product Liability & Safety 2026 Comparisons

The European Union (EU) General Product Safety Regulation 2023/988 (GPSR) is the main law. It is in force in all EU countries for non-food products put on the market as from 1 December 2024. It covers products intended for consumers or likely to be used by consumers under reasonably foreseeable conditions.

For non-food consumer products put on the market before 13 December 2024, the Austrian law on product safety, Produktsicherheitsgesetz 2004 (PSG 2024), remains applicable. Hence, for consumer products, two sets of rules may apply in parallel.

For non-consumer products, the EU-Market Surveillance Regulation (2019/1020) applies, unless there are specific provisions with the same objective in the EU harmonised legislation which regulate market surveillance and enforcement in a more specific manner.

Annex I of this EU-Regulation (EU) 2019/1020 lists around 70 of these sector-specific Union harmonisation acts for particular product groups, such as machinery, electrical equipment, electromagnetic compatibility (EMC) of equipment, toys, medical devices, explosives for civil use, measuring instruments, marine equipment and automotive-type approval, and many more. Where a sectoral act has specific market surveillance provisions, those specific rules prevail (lex specialis), otherwise the aforementioned EU-Regulation 2019/1020 applies.

• EU-Commission Delegated Regulation (EU) 2024/3173 supplements the GPSR by laying down the criteria and rules for assessing the level of risk of consumer products and for certain Safety Gate notifications.
• The EU-Blue Guide on the implementation of EU product rules 2022, not a product safety act in itself, but a non-binding guidance document (soft law) that explains how EU product safety and product compliance legislation should be interpreted and applied in practice.
• For food there is a special food law safety regime in the EU: The General Food Law Regulation 178/2002, supplemented by the Austrian Food Safety and Consumer Protection Act 2006 (LMSVG).

The key regulatory authority is the Federal Ministry of Labour, Social Affairs, Health and Consumer Protection (Bundesministerium für Soziales, Gesundheit, Pflege und Konsumentenschutz).

Market surveillance and inspections are carried out in co-operation with the provincial authorities for non-food and the AGES (Austrian Agency for Health and Food Safety) for food products.

“Corrective action” is defined in the EU-Market Surveillance Regulation (2019/1020) and refers to any measure an economic operator takes to address and resolve a product safety or compliance issue, whether following a request from a market surveillance authority or on its own initiative – eg, warnings, withdrawal, recall, online delisting.

The Blue Guide interprets and illustrates these corrective measures, explaining the differences between these corrective measures and how they are used in practice.

The GPSR does not contain a specific definition of “corrective action”, but the term should be interpreted in line with the above-mentioned framework. The GPSR lays down binding rules on when economic operators and market surveillance authorities must adopt corrective measures and what these measures must achieve.

Relevant criteria: corrective measures must be tailored to the level and nature of the risk, must be effective and proportionate in reducing or eliminating that risk, must be taken without undue delay, and must be accompanied by clear and adequate communication so that consumers can protect themselves.

Economic operators and authorities must use effective means of communication, which can include targeted notices, for example via retailers, websites, emails, online platforms, and, where necessary, broader public announcements, depending on the product, the distribution channel and the group of affected consumers.

Notification is based on a risk assessment and is usually triggered by specific events such as injuries, accidents, consumer complaints, internal testing or risk assessment results, or information received from market surveillance authorities or reports by whistle-blowers within the economic operator (eg, the producer) or from outside, in line with the EU Whistleblowing Directive. This law expressly covers product safety matters and is implemented in Austria in the HinweisgeberInnenschutzgesetz (HSchG).

Where a manufacturer considers or has reason to believe that a product is dangerous, it must immediately inform, via the Safety Business Gateway, the market surveillance authorities of all member states where the product has been made available on the market.

Importers and distributors who become aware of such information must immediately inform the manufacturer. A direct notification duty of importers or distributors to the market surveillance authorities is not foreseen: either the manufacturer submits the notification itself, or it instructs the importer or one of the distributors to do so. The GPSR does not grant importers or distributors a right to refuse such an instruction. In an earlier draft version of the EU Regulation, a short deadline of two working days had been proposed.

Where a product has caused an accident which resulted in death or serious harm to a person’s health (including injuries, illness or chronic effects), the manufacturer must ensure that this accident is notified without undue delay via the Safety Business Gateway to the authority of the member state where the accident occurred, giving at least the product type, identification number and, where known, the circumstances; further information must be supplied on request. Importers and distributors who become aware of such an accident must without undue delay inform the manufacturer, who must then either notify the authority itself or instruct an importer or distributor to do so.

Non-EU manufacturers must ensure that an EU based economic operator (such as their EU responsible person or importer) is available to interact with market surveillance authorities and, where appropriate, submit the relevant notifications on their behalf.

The GPSR does not prescribe specific penalty amounts but leaves it to the member states to lay down their own sanctioning regimes. Austria has to date not yet adopted specific financial sanctions for breaches of obligations under the GPSR.

Under the still-applicable Austrian Product Safety Act 2004 (PSG 2004), the maximum administrative fine is EUR25,000. Under the GPSR, penalties must be effective, proportionate and dissuasive. It is therefore open to doubt whether the existing Austrian sanction framework will meet this standard in the long term.

The main causes of action are:

• statutory non-fault product liability (“strict liability”) under the Austrian Product Liability Act based on the current and the New EU-Product Liability Directive;
• fault-based tort law;
• fault-based contract law, both under the Austrian Civil Code (ABGB)

The burden of proof is on the claimant, which must demonstrate:

• the defect in the product;
• the damage caused by the product; and
• the causal link between damage and defect.

Action is against:

• the producer/manufacturer, own-branders, and with the new EU-Product Liability Directive also against software and AI developers;
• the importer;
• the authorised representative in the EU;
• fulfilment service provider and online marketplaces; and
• subsidiary: the distributor.

Standing to bring claims for product liability is held by any natural person suffering personal injury or death and damage to property if ordinarily intended for private use or consumption and if it was mainly used for private purposes, hence privately used property. Pure business-to-business (B2B) property damage to professional assets is exempted.

Liability is extinguished ten years after the day on which the defective product that caused the damage was placed on the market. Within this period, the civil claim itself is subject to a limitation period of three years from the date on which the injured party became aware of the damage and of the person liable.

Under Austrian general civil law, there is a general 30 year long-stop limitation period, meaning an absolute maximum time limit after which a civil claim can no longer be brought, regardless of when the claimant became aware of the damage or the liable party. In contrast, the new EU Product Liability Directive sets out an exceptional 25 year long-stop period specifically for latent personal injuries, which is shorter than the general 30-year period under Austrian law. As the Directive is based on maximum harmonisation, this exceptional 25 year long-stop for latent personal injuries is intended to operate as a specific cap for harmonised product liability claims in Austria.

Basic rule: The relevant Austrian courts have jurisdiction where the defendant (eg, manufacturer, importer) is domiciled/has its legal seat in Austria.

Special product-liability claims: place where the damage occurred or where the defective product was manufactured or put into circulation.

Austrian law does not provide any formal, mandatory pre-action procedure specific to product liability cases. There is no legal obligation on the injured party to send a formal pre-action letter, engage in ADR (alternative dispute resolution), or notify an authority.

Austrian law does not provide for a US-style “litigation hold” or spoliation regime, and neither the Product Liability Act nor the Code of Civil Procedure (ZPO) impose any specific pre-action obligation to preserve products or documents backed by separate sanctions.

Manufacturers are advised to retain product-related documentation for at least ten years (see 2.3 Time Limits for Product Liability Claims).

Courts are free to evaluate the evidence, and if a party destroys or fails to preserve important evidence (such as the product, documents or test reports), the court may take this into account when assessing the overall evidentiary situation and the persuasiveness of that party’s position.

Thus, both claimants and defendants are well advised to preserve the product and relevant documentation, since the loss of such evidence can adversely affect their position in court.

There are no special disclosure rules for product liability cases. Such claims follow the ordinary civil procedure rules, which do not provide US-style discovery or a general duty to disclose all relevant documents.

The new EU Product Liability Directive 2024/2853 will require Austria to introduce targeted disclosure mechanisms so that claimants can obtain relevant evidence from defendants or third parties, subject to judicial control and proportionality, but it will not create a broad, adversarial discovery regime. Access to evidence will remain within the existing judge-driven civil procedure framework.

Expert evidence (Gerichtssachverständige) in product liability cases is governed by the general rules of the Austrian Code of Civil Procedure (ZPO). Courts usually appoint independent court experts to assess technical and medical issues. Party-appointed experts are treated as submissions, not as court evidence, and there is no separate expert evidence regime specific to product liability.       

See 2.1 Product Liability Causes of Action and Sources of Law. The claimant bears the burden of proof and must satisfy the court, on the balance of probabilities, that a defect existed and that this defect was more likely than not the cause of the damage.

Under the new EU Product Liability Directive, this basic allocation is maintained, but explicitly requires that the overall burden on the claimant is not excessive, especially in complex technological contexts (software, AI, interconnected systems). The new Directive introduces a rebuttable presumption of defectiveness in favour of the claimant, where:

• the defendant fails to disclose relevant evidence ordered by the court;
• the product or its safety is in non-compliance with mandatory safety requirements; or
• the damage is of a kind “typically consistent” with a defect in the product.

Presumption of causation applies where:

• the defect and the type of damage are established; and
• the damage would typically be caused by such a defect.

These presumptions shift the burden to the defendant to rebut them; if the defendant cannot do so, defect and/or causation are deemed proven.

In Austria, product liability cases are brought before the ordinary civil courts, usually the district courts or regional courts, depending on the amount in dispute and subject matter competence; higher instances are the courts of appeal and ultimately the Supreme Court (OGH for Oberster Gerichtshof). All civil product liability cases are decided by professional judges only. The Austrian system does not use juries in civil matters.

First instance judgments (district or regional court) can be appealed to the next higher court, usually within four weeks of service of the written judgment.

A further appeal to the Supreme Court (Revision) is only possible if the statutory admissibility criteria are met (in particular a legal question of fundamental importance), a threshold that is relatively difficult to overcome in practice.

There are no special or shorter deadlines or procedures for product liability cases; they are treated like any other civil matter.

Under the current Austrian Product Liability Act (PHG), defendants can rely on the classical set of defences derived from the 1985 EC-Product Liability Directive, in particular that they did not put the product into circulation, that the defect did not exist when the product was put into circulation, that the defect results from mandatory legal provisions or that, given the state of scientific and technical knowledge at the time, the defect could not have been discovered (development risk defence).

The new EU Product Liability Directive 2024/2853 largely preserves this structure but sets out a more detailed catalogue of defences in Article 11 and at the same time significantly narrows them in practice, especially for digital products.

It links the development risk defence to the period during which the product is within the manufacturer’s control and excludes exoneration where defectiveness is due to related services, software, including software updates, or a lack of safety-relevant updates under the manufacturer’s control. For software-intensive and connected products, this will make it considerably more difficult for manufacturers to rely on development risk and “no defect at the time of placing on the market” arguments.

The main exemptions from liability (defences) can be listed briefly as follows.

• The economic operator did not place the product on the market or put it into service (or, for a distributor, did not make it available on the market).
• It is probable that the defect did not exist when the product was placed on the market, put into service or made available, but arose only afterwards.
• The defect is due to compliance with mandatory legal requirements.
• According to the objective state of scientific and technical knowledge at the time of placing on the market or putting into service, or while the product was within the manufacturer’s control, the defect could not have been discovered (development risk defence).
• For a component manufacturer: the defect of the finished product is attributable to its design or to the instructions given by the manufacturer of the finished product.
• For a person substantially modifying a product: the defect is related to a part of the product that was not affected by the modification.

Under both the new EU Product Liability Directive and the Austrian PHG, mandatory regulatory requirements and technical standards play different roles in the defect analysis.

• Mandatory regulatory requirements: If the alleged defect directly results from compliance with binding legal rules, this can constitute a specific defence. Regulatory compliance with such mandatory requirements is therefore highly relevant and, where the defence applies, liability excluding.
• By contrast, technical standards and industry practice: EN/ISO norms and similar standards are usually non-binding. Compliance is only evidence of an appropriate minimum safety level, not an independent defence. Courts may still find a defect if, in the circumstances (state-of-the-art, user group, foreseeable misuse, product presentation), a higher level of safety was objectively to be expected.

In Austrian product liability litigation, the general “loser pays” principle applies: the unsuccessful party must reimburse the successful party’s necessary court fees and tariff-based legal costs, including court-appointed expert, interpreter and witness costs at statutory/tariff levels. In addition, the losing party must still pay its own lawyer’s fees. Contingency fees (pure quota litis) are prohibited under Austrian professional rules, but fee agreements with success-related components (for example a bonus on top of a base or time based fee) are permissible within certain limits.

Moreover, Austrian law does not recognise punitive damages or exemplary damages; only compensatory damages are recoverable.

In Austria, product liability claims can be financed both through commercial third-party litigation funding and through legal expenses insurance.

• Third-party funding is generally admissible – the Austrian Supreme Court has confirmed its permissibility (notably OGH 6 Ob 224/12b), and funders typically cover court and legal costs, including adverse cost risk, in higher value or mass cases in return for a share of the proceeds.
• By contrast, legal expenses insurance, usually taken out long before any dispute arises, functions as the most common de facto funding mechanism for consumers, as it covers their own litigation costs and, depending on the policy, the risk of having to pay the opponent’s costs.
• In both models, the mechanism typically covers both the party’s own litigation costs and, in the event of losing, the obligation to pay the opponent’s costs subject, in the case of insurance, to the specific policy terms and any coverage limits or exclusions.

Austria does not have US-style opt-out class actions, but several collective mechanisms are available and used in product liability contexts.

• Injured parties generally must bring individual claims, but these can be aggregated procedurally. Austria has implemented the EU Representative Actions Directive: only recognised qualified entities (eg, consumer organisations) can bring representative actions for injunctive and redress measures on behalf of consumers.
• In practice, multiple product liability claims are often bundled through joinder or by assigning numerous individual claims to one claimant (the “Austrian-style class action” model).
• Such co-ordinated proceedings are used where many consumers are affected by the same allegedly defective product or marketing conduct, allowing efficient handling of common liability and causation questions.

An Austrian Supreme Court case from 2021 (5Ob 152/21w) concerned an alleged design defect in a ski binding that did not release during a backward fall. The court held that there was no design defect, because in the specific fall scenario – backward fall – the non-release was consistent with the applicable technical standards and industry norms, which indicated that the product was free from defect. The court also rejected an instruction defect. According to the court, an average skier cannot reasonably expect a ski binding to release in every conceivable fall situation. In addition, the manufacturer had provided a general warning stating that the ski–binding–boot system does not necessarily release in all situations where there is a risk of injury or death, which further supported the conclusion that the product was not defective.

Another Austrian Supreme Court case (7Ob 103/19a) concerned a one-centimetre metal fragment found in a canned chicken product, which ended up in the mouth of a 12-year-old claimant but did not cause any physical injury. The claimant, however, developed a clinically relevant obsessive–compulsive disorder (checking compulsion), for which the incident was found to be 10–15% causally responsible. The court affirmed liability, holding that such an incident can at least contribute to triggering a mental disorder of disease value and does not fall outside the bounds of reasonably foreseeable consequences.

A recent Austrian Supreme Court decision from 18 November 2025 (2Ob77/25z) on a defective copper IUD (intrauterine device) whose arm broke and led to an unintended pregnancy has been referred to the CJEU (Court of Justice of the European Union) to clarify whether loss of earnings suffered by a woman as a result of an unintended pregnancy qualifies as “damage caused by personal injury” under Article 9(a) of the Product Liability Directive 85/374. This is crucial for defining the boundary between recoverable personal injury loss and excluded pure economic loss in EU product liability law.

In a subsequent Supreme Court decision of 27 April 2026 (4 Ob 104/25k), the court dealt with another claim arising from a defective copper IUD, involving an unintended pregnancy. The woman seeks compensation for the financial consequences of the unwanted pregnancy, notably the costs of the abortion and of a new contraceptive method. The court held that the decisive questions, in particular whether such follow-on losses qualify as damage caused by personal injury, overlap with the issues already referred to the CJEU in the case cited above (2Ob77/25z). It therefore stayed the proceedings until the CJEU has ruled, underlining the broader significance of the pending reference for the treatment of consequential losses in contraceptive product.

The key driver of current trends is the new EU Product Liability Directive 2024/2853 and its upcoming implementation in Austria.

• The Directive broadens the concept of “product” to cover software, including AI systems, digital design files and certain connected digital services.
• It expands recoverable damage by adding explicit compensation for data corruption and abolishing the EUR500 property damage deductible.
• It broadens the range of strictly liable operators by adding certain fulfilment service providers, specific online intermediaries and those essentially modifying products and reintroducing them to the market
• New evidentiary tools for claimants, disclosure obligations, rebuttable presumptions in complex technical cases, are expected to influence Austrian litigation practice.
• In parallel, the General Product Safety Regulation (GPSR) tightens safety duties, especially for online sales, marketplace operators, traceability and recall management, and is driving a modernisation of Austrian product safety practice with a strong focus on digital and connected products.

Future policy in Austria is increasingly focused on putting the EU’s new product liability and safety framework into national law, with a particular emphasis on digital and AI-enabled products.

First, Austria will need to amend its Product Liability Act to transpose Directive 2024/2853, including specific provisions on liability for software and AI systems, explicit coverage of additional types of damage, such as data loss and psychological harm, and enhanced evidentiary support for claimants.

Secondly, it is important to note that software updates may be treated as new instances of placing a product on the market, so each significant update that changes the product’s safety or risk profile may trigger a fresh assessment of defectiveness at the relevant time of that new release.

Thirdly, the legislature and regulators are working on how the Product Liability Directive, the EU AI Act and the GPSR interlock, especially regarding cybersecurity, update and monitoring obligations and risk assessment duties for connected products and IoT devices.

Finally, policy debate is increasingly turning to collective redress mechanisms, third-party litigation funding and the practical deployment of representative actions in mass consumer and product cases, which will be crucial for large-scale disputes involving defective digital products or AI-driven systems.