Update: New Product Liability Act promulgated

Compared to the government draft, which we described in detail in our Alert of March 10, 2026, the Bundestag has amended only one provision in the new Product Liability Act—but one with significant practical implications: The disclosure of evidence (Section 19) may now also apply to third parties, and a new expert review procedure protects trade secrets. We outline these changes below.

Changes from the draft

The draft already provided for court-ordered disclosure of evidence—a first in product liability law. Otherwise, German civil procedure recognizes only specific disclosure obligations (such as Sections 142, 422 et seq. German Code of Civil Procedure (ZPO)); comparable disclosure claims have so far existed only in specialized areas such as antitrust damages (Section 33g GWB) or patent law (Section 140c PatG).

If the plaintiff has filed a lawsuit and sufficiently substantiated the plausibility of their claim with facts and evidence, the court, upon the plaintiff's motion, orders the defendant to disclose relevant evidence within their control (Section 19(1)). This also includes documents that the defendant must first create by compiling or classifying existing information (see Recital 42 of the Directive).

Conversely, the defendant may demand disclosure from the plaintiff if the defendant sufficiently demonstrates that it needs the evidence for its defense (Section 19(2)).

Disclosure must always be limited to what is necessary and proportionate. The legitimate interests of all parties involved, including third parties, must be taken into account, in particular the protection of confidential information and trade secrets (Section 19(3)). If the defendant fails to comply with a disclosure order, the product is presumed to be defective (Section 20(1)(1)).

The Bundestag has retained this framework but has amended it in two respects: It has significantly expanded the group of parties subject to disclosure obligations and introduced a new protective mechanism. Under Section 19(1), the court now orders disclosure under the same conditions not only with respect to the defendant but also with respect to third parties. This means, for example, that market surveillance authorities, suppliers, or software and service providers can be required to disclose information in proceedings in which they are not a party.

Third parties are doubly protected in this regard. They are not required to disclose anything to the extent that they are entitled to refuse to testify under Sections 383 through 385 of the ZPO; Sections 386 through 390 of the ZPO apply accordingly. This includes the right not to disclose one's own trade or business secrets—or those of other non-parties (Section 384 no. 3 of the ZPO). Furthermore, their legitimate interests must be taken into account in the proportionality assessment (Section 19(3)). If a third party does not disclose information, a presumption of defectiveness does not apply, as Section 20(1)(1) continues to apply only to the defendant. However, penalties and coercive measures may be considered under Section 390 ZPO.

Another new provision is an expert proceeding for the protection of trade secrets (Section 19(4)). In addition to the confidentiality measures under Sections 16 through 20 of the Trade Secrets Act (GeschGehG), which the court may also order ex officio, the court may, upon a sufficiently substantiated motion by a party, appoint an expert in independent evidentiary proceedings to assess the need for confidentiality.

The other parties have access to this evidence only through their legal representatives. Whether the expert opinion is admitted in whole or in part into the main proceedings is decided by the court in this proceeding after a renewed balancing of interests. The procedure is modeled after the "Düsseldorf procedure" used in patent disputes and also prevents co-defendant manufacturers from learning trade secrets from one another. This allows highly sensitive information—such as source code, training data, or development documents—to be examined without the opposing party gaining access to it—at least initially.

The Bundestag did not include any further protective mechanisms. The Bundesrat's proposals—including an explicit ban on fishing expeditions, stricter specificity requirements for disclosure motions, and protection for repair and maintenance businesses—were not adopted. Defendants and third parties thus primarily have recourse to the general standards of necessity and proportionality to counter excessive disclosure requests.

Entry into force

The new Product Liability Act (ProdHaftG) takes effect on December 9, 2026 and applies to products placed on the market or put into service on or after that date. For products placed on the market or put into service on or before December 8, 2026, the ProdHaftG of 1989 (Section 23) continues to apply. 

Resolution of the Bundestag

The Bundestag has also adopted a resolution regarding EU authorized representatives of manufacturers from third countries, who are liable under Section 10 of the new law. The Federal Government is to examine whether an obligation to obtain liability insurance or comparable instruments, as well as quality requirements (availability, reliability, expertise), should be introduced for them. In addition, it is to examine whether further measures are necessary to safeguard product liability claims, such as a privately funded compensation fund. The resolution is not legally binding, but further regulation is possible. 

Regulatory context

The new liability regime is closely intertwined with the regulatory requirements of product safety law, in particular the General Product Safety Regulation (EU) 2023/988 and the planned European Product Act. This brings public-law product regulation and private-law liability even closer together. Companies should therefore design their compliance systems holistically—taking into account both regulatory and liability requirements.