Germany has implemented both Directive 85/374/EEC of July 25, 1985, and Directive 2001/95/EC of December 3, 2001. Thus, German legislation has the same basis as other European countries regarding product liability. Germany implemented Product Liability Directive 85/374/EEC (the "PLD" or the "Directive") by passing a special law, the Produkthaftungsgesetz (the "ProdHaftG"), which came into force on January 1, 1990. European law was therefore not integrated into the existing German Civil Code.
The ProdHaftG mirrors the PLD very closely, copying it verbatim in some parts, adding or shortening passages in others. The ProdHaftG governs German law, creating rights and duties and making direct recourse to the actual PLD obsolete. The ProdHaftG establishes the principle of strict liability for manufacturers for damage caused by a defective product, with no proof of culpability needed.
Since the ProdHaftG is German law, its interpretation is primarily the duty of German courts. However, where terms contained in the PLD are used, their interpretation must be consistent with the Directive. German courts draw on the reasoning for the PLD as well as drafts of the PLD, and they can also refer questions to the European Court of Justice (the "ECJ") for clarification. In applying the ProdHaftG, German courts must observe ECJ rulings on the PLD.
German law features the Appliances and Products Safety Act (the "GPSG"), which came into force on May 1, 2004.1 It encompasses a number of European product and safetyrelated directives,2 but it serves mainly to implement into national law the General Product Safety Directive, 2001/95/ EC (the "GPSD"). Again, a special law was created, rather than incorporating the GPSD into existing legislation, and terms taken from the GPSD must be interpreted in keeping with the GPSD and the ECJ's case law.
The GPSG has a preventive aim and sets out the standards to which a product or appliance must conform. It also sets out manufacturers' duties in cases of defective and dangerous products. Because the GPSG is public/ administrative law, rather than civil law, the state watches over manufacturers' adherence to it. It does not confer civil claims on individuals and aims to prevent product safety incidents.
SCOPE OF APPLICATION
Altogether 24 sections specify in detail safety standards, handling requirements, and administrative rules. According to Section 1, the GPSG applies to "the circulation and the display of products in the course of an independent commercial activity." "Putting into circulation" means providing a product to another person independently and as part of a commercial activity. "Displaying" means advertising and promoting a product for sale.
According to Section 4 of the GPSG, a product may be put into circulation only if it will not endanger any person's health and safety when it is used as intended or foreseeably misused. The GPSG sets down extensive duties to inform and identify in Section 5. Every product must identify its manufacturer, and consumers must be suffi ciently instructed of all possible dangers to safety that may result from the use or foreseeable misuse of the product. The manufacturer and the importer must inform the designated authority if they are aware that their product may endanger the health and safety of a person and must inform the authority about any remediating measures that have been taken.
According to Section 8, paragraph 2, GPSG, the competent market-inspection authorities must ensure effective surveillance over the introduction of new products into the market as well as products already on the market. According to Section 8, paragraph 3, GPSG, the highest competent regional government authorities must coordinate this surveillance. To avert signifi cant dangers, these authorities must develop a surveillance plan and prepare appropriate federal measures. Alongside general product safety, the GPSG allows for special directives to detail how some products (machines, toys, sporting goods, electrical devices) can be put into circulation.
The GPSG applies to:
- Products, technical appliances, and consumer products;
- Technical appliances: Ready-to-use appliances, which are intended for use only at work;
- Consumer products: Products intended for consumers; products that consumers can reasonably be expected to use, even if not intended for their use; or products that are given to consumers as part of a service.
A product is "ready to use" when it can be used as intended. Used products, which do not fall under the GPSG, consist of vintage products, along with products that must be repaired or assembled before use (a fact of which the user has been informed).
The GPSG applies principally to manufacturers, sellers, and importers:
- A "manufacturer" is anyone producing a product, reprocessing it, or substantially altering it before putting it into circulation or representing itself as the manufacturer.
- A "seller" is someone who commercially puts products into circulation without being the manufacturer, manufacturer's agent, or importer.
- An "importer" is anyone who imports a product into the European Economic Area from a nonmember country or commissions the import.
Because the GPSG is public/administrative law, it does not give rise to civil claims. Its main function is preventive, giving authorities the power to monitor product safety and take appropriate actions according to Section 8 GPSG.
Those actions include, but are not limited to:
- Warning the public;
- Ordering warnings to be attached to products and sales points;
- Ordering the withdrawal of a product from circulation; And
- Prohibiting the circulation of a product.
The GPSG provides sanctions for manufacturers who do not adhere to their duties according to the GPSG or any measures undertaken by the authorities according to Section 8 GPSG. Section 19 sets financial penalties of up to €3,000 for minor violations and up to €30,000 for major or repeated ones. According to Section 20, an intentional or negligent breach of the manufacturer's duties set out in the GPSG leading to injury to a consumer can even result in a prison sentence of up to one year for the manufacturer.
PRODUCT RECALLS AND GOVERNMENT ADMINISTRATIVE INVESTIGATIONS OF PRODUCT DEFECTS
The GPSG gives the relevant authorities the power to monitor products on the market, to require manufacturers' adherence to the GPSG's standards, and to remedy any violation. The most important remedies are warning and product recall.
RAPEX is the EU rapid alert system for all dangerous consumer products, with the exception of food, pharmaceuticals, and medical devices. The system, which issues not just warnings but also recalls, works across Europe. However, a manufacturer must also alert the local and national authorities should a significant product defect occur.
RAPEX allows for the rapid exchange of information between the Commission and the Member States, via central contact points,3 concerning measures taken to prevent or restrict the marketing or use of products posing a serious risk to consumer health and safety. RAPEX covers both measures ordered by national authorities and measures taken voluntarily by producers and distributors. The RAPEX National Contact Points must always be informed, according to Section 5, paragraph 2, GPSG, as well as the local authorities. Every Friday, the Commission publishes a weekly overview of the dangerous products reported by the national authorities (the RAPEX notifi cations). This weekly overview provides information on the product, the possible danger, and the measures taken by the reporting country.
The German ministry responsible for consumer policy, consumer protection, and consumer information is the Federal Ministry of Food, Agriculture and Consumer Protection. It is responsible for:
- Consumer health protection as well as protection from deception with regard to food, animal feed, cosmetics, and other commodities, including the pertinent labeling laws;
- Food and nutrition policies, especially dietary education; And
- The protection of consumers' economic interests, including issues regarding consumer information.
In general, injured consumers are responsible for asserting their own private claims under civil law. Class actions are rare. Under exceptional circumstances, consumers' claims can be assigned to a consumer protection organization, which can then file the claims for the consumers. Public authorities are concerned only with enforcing health and safety laws and pursuing any criminal action warranted against manufacturers.
If warning consumers of product risk will not suffice to protect their health and safety, then the product must be withdrawn from the market. A manufacturer is obliged to recall a product if it poses a serious danger to life, body, or health. Products which are intended for home or everyday use or which are mass-produced will pose an even bigger threat and increase the duty to recall should the circumstances arise. However, all circumstances must be examined on a case-by-case basis. According to Section 8 GPSG, the competent local authorities have the power to decide appropriate measures. They will also work closely with the manufacturer when a recall takes place.
1 Replacing the previously existing two laws, both based on Directive 2001/95/EC.
2 Such as 2006/95/EC, 88/378/EWG, 87/404/EWG, 90/396/EWG, 89/686/EWG, 98/37/EC, 94/25/EWG, 94/9/EC, 95/16/EC, 75/324/EWG, and 97/23/EC.
3 The National Contact Points for Germany can be found at http://www.bmelv.de (web site last visited August 2, 2012).
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