Case Law Report

The semi-annual over­view of pro­duct lia­bi­li­ty and pro­duct safe­ty law in practice

Eva­lua­ti­on peri­od August 2022 – June 2023

Decis­i­ons in pro­duct lia­bi­li­ty and pro­duct safe­ty law are of gre­at importance for manu­fac­tu­ring com­pa­nies. Recent case law has dealt, among other things, with claims for com­pen­sa­ti­on in the case of seri­al defects and the ques­ti­on of who is to be regard­ed as the manu­fac­tu­rer of a pro­duct in the first place.

Manu­fac­tu­rer liability

The Fede­ral Court of Jus­ti­ce (BGH), Court decis­i­on of 21.03.2023 – VI ZR 1369/20

The sale and dis­tri­bu­ti­on of was­te often cau­ses legal pro­blems in prac­ti­ce. In the pre­sent case, the defen­dant had purcha­sed a pot­as­si­um phos­pha­te solu­ti­on as was­te, sub­se­quent­ly label­led it as an EC fer­ti­li­ser for ara­ble far­ming and pre­pared pro­duct infor­ma­ti­on. It had the was­te thus re-declared deli­ver­ed by a dis­tri­bu­tor direct­ly from the third par­ty to the buy­er, a far­mer. After the far­mer had appli­ed the fer­ti­li­ser to his field, the trea­ted plants died within ten days. The far­mer attri­bu­ted this to con­ta­mi­na­ti­on with her­bici­des and clai­med dama­ges of just over EUR 70,000.

In the opi­ni­on of the lower court and the Fede­ral Court of Jus­ti­ce, the­re was no case of pro­duct lia­bi­li­ty under the Pro­duct Lia­bi­li­ty Act. This was becau­se § 1 para. 1 sen­tence 2 Prod­HaftG pre­sup­po­sed that an object other than the defec­ti­ve pro­duct was dama­ged and that this object, by its natu­re, was usual­ly inten­ded for pri­va­te use or con­sump­ti­on. Howe­ver, the plain­ti­ff far­mer had acqui­red the fer­ti­li­ser for pro­fes­sio­nal pur­po­ses, which is why not­hing else could app­ly to the plants fer­ti­li­sed with it.

Howe­ver, the Fede­ral Court of Jus­ti­ce found that the seller’s con­duct con­sti­tu­ted a breach of a duty of care within the mea­ning of sec­tion 823(1) of the Ger­man Civil Code. The manu­fac­tu­rer had the most exten­si­ve duty to avo­id pro­duct defects, whe­re­as dis­tri­bu­tors were only respon­si­ble to a very limi­t­ed ext­ent due to their lack of influence on the design and plan­ning of the pro­duct; in par­ti­cu­lar, lia­bi­li­ty for design and manu­fac­tu­ring defects was excluded.

A per­son who only purcha­ses a pro­duct and resells it for a spe­ci­fic pur­po­se can also be held lia­ble in tort as the pro­du­cer of the pro­duct. By ren­aming the was­te and crea­ting the cor­re­spon­ding pro­duct infor­ma­ti­on, the sel­ler had crea­ted a new pro­duct and was thus a pro­du­cer in the sen­se of pro­du­cer lia­bi­li­ty. Alt­hough the was­te had alre­a­dy been sold to her con­ta­mi­na­ted, the public has dif­fe­rent requi­re­ments for was­te on the one hand and fer­ti­li­ser on the other. The­r­e­fo­re, the sel­ler could not assu­me that the was­te had been exami­ned for con­ta­mi­na­ti­on before­hand – neither by the third par­ty nor by the distributor.

Pro­duct liability

Dis­trict Court (LG) Ham­burg, Court decis­i­on of 14.11.2022 – 322 O 63/22

Seri­al error I

The ques­ti­on of whe­ther defects in a pro­duct series can give rise to claims for com­pen­sa­ti­on by users has been the sub­ject of many court decis­i­ons in recent years. In the case befo­re the Ham­burg Regio­nal Court, the issue was not a so-called suspec­ted defect, but the ques­ti­on of how pro­duct defects that occur­red else­whe­re in a pro­duct series affect the plaintiff’s stan­dard of pro­of. The plain­ti­ff had an IUD inser­ted for con­tracep­ti­on, which came loo­se after three years, with one of the arms missing.

The court gran­ted the cla­im for com­pen­sa­ti­on for pain and suf­fe­ring under §§ 1 para. 1, 8 sen­tence 2 Prod­HaftG, redu­cing the amount clai­med. The fact that a pro­duct defect in the IUD in ques­ti­on had not been pro­ven was irrele­vant becau­se the­re was pri­ma facie evi­dence that the loss of one arm was due to a pro­duct defect. The same defect had occur­red in seve­ral of the manufacturer’s pro­ducts in this series. Moreo­ver, no other reasons for the loss were apparent.

Dis­trict Court (LG) Lim­burg, Court decis­i­on of 14.10.2022 – 4 O 114/21

Seri­al defects II

This case also invol­ved the ques­ti­on of the defec­ti­ve­ness of an IUD for con­tracep­ti­on. Some of the pro­ducts pla­ced on the mar­ket rup­tu­red while still in the body or when remo­ved. The manu­fac­tu­rer then initia­ted a recall.

In the case of the plain­ti­ff, both arms of the IUD had bro­ken off in the cour­se of rem­oval prompt­ed by a desi­re to have child­ren, not by the recall. Two attempts to remo­ve them fai­led. Only a third attempt in the form of a cli­ni­cal ope­ra­ti­on was successful.

The Dis­trict Court found a pro­duct defect resul­ting from a manu­fac­tu­ring defect. The com­pound of a pla­s­tic and bari­um sul­pha­te had not been mixed pro­per­ly, caus­ing the mate­ri­al to beco­me britt­le in some places.

If dama­ge occurs fre­quent­ly during the use of a pro­duct, the­re is pri­ma facie evi­dence of its defec­ti­ve­ness, even if this evi­dence has not been pro­vi­ded for the pro­duct at issue. The fre­quen­cy of faults in the affec­ted bat­ches alre­a­dy speaks for an objec­ti­ve safe­ty defect that could poten­ti­al­ly lead to dama­ge. Final­ly, the­re was fur­ther pri­ma facie evi­dence in favour of the cau­sa­li­ty bet­ween the defect and the dama­ge, becau­se pre­cis­e­ly the defect descri­bed in the defendant’s war­nings had occurred.

Hig­her Regio­nal Court (OLG) Zwei­brü­cken, Court decis­i­on of 30.08.2022 – 1 U 267/21

Self-responsible self-endangerment

A per­son who knows that his pro­duct may not be safe but uses it any­way can­not cla­im com­pen­sa­ti­on for the resul­ting dama­ge. The plain­ti­ff suf­fe­r­ed a deer acci­dent and attri­bu­ted this to a “wan­de­ring bra­king point” and thus a pro­duct defect in his motorbike.

This could not be estab­lished; simp­le wear and tear was also a pos­si­bi­li­ty. Fur­ther­mo­re, accor­ding to the Hig­her Regio­nal Court, the plain­ti­ff had alre­a­dy tried to repair the front bra­ke seve­ral times befo­re the acci­dent; the motor­bike had been in the work­shop a total of five times for this reason. After the last repair, the plain­ti­ff had not che­cked whe­ther the pro­blem had now been eli­mi­na­ted: The­r­e­fo­re, trust wort­hy of pro­tec­tion could not have ari­sen at all. As a dri­ving ins­truc­tor and expe­ri­en­ced motor­cy­clist, the plain­ti­ff should have been awa­re of the ext­ent of the pro­blem. Howe­ver, anyo­ne who “so reck­less­ly” puts hims­elf in dan­ger must bear the resul­ting dama­ges himself.

Pro­duct safety

Admi­nis­tra­ti­ve Court (VG) Sta­de, Court decis­i­on of 18.01.2023 – 6 A 296/20

Non-hazardous kne­a­ding slime

Some­ti­mes the mar­ket sur­veil­lan­ce aut­ho­ri­ties over­shoot the legal tar­get. This was also the case in this case, whe­re an importer of pla­s­ti­ci­ne as a children’s toy was pro­hi­bi­ted from con­ti­nuing to mar­ket the pro­duct. The back­ground was that the boron con­tent excee­ded the limit value of the EU Toys Direc­ti­ve (2009/48/EC).

Accor­ding to the Sta­de Admi­nis­tra­ti­ve Court, such a mea­su­re (based on Artic­le 16 (1) of the Mar­ket Sur­veil­lan­ce Ordi­nan­ce) requi­res a health risk, whe­re­as mere non-conformity with the Toys Direc­ti­ve is not suf­fi­ci­ent. Alt­hough the con­tents actual­ly excee­ded the limit values, the­re was no health risk whatsoe­ver. The­r­e­fo­re, the mar­ket sur­veil­lan­ce aut­ho­ri­ty should have first reques­ted the manu­fac­tu­rer to take coun­ter­me­a­su­res. A direct com­ple­te pro­hi­bi­ti­on of the pla­cing on the mar­ket was disproportionate.

Revi­si­on of the Pro­duct Safe­ty Regulation

Along the way, the frame­work con­di­ti­ons of pro­duct safe­ty law have chan­ged. The Pro­duct Safe­ty Regu­la­ti­on, which replaces the pre­vious direc­ti­ve, was published in the Offi­ci­al Jour­nal of the Euro­pean Uni­on on 23.05.2023 and appli­es from 13.12.2024.

Direct appli­ca­bi­li­ty ensu­res a maxi­mum degree of har­mo­ni­sa­ti­on in the EU and thus more legal cer­tain­ty for tho­se app­ly­ing the law, as trans­for­ma­ti­on into natio­nal law and thus sus­cep­ti­bi­li­ty to natio­nal dif­fe­ren­ces is no lon­ger neces­sa­ry. As in the past, howe­ver, the fine and penal­ty pro­vi­si­ons requi­red to enforce the law will be found in flan­king natio­nal laws, in Ger­ma­ny pro­ba­b­ly in the law on making pro­ducts available on the mar­ket (ProdSG).

Among other things, the defi­ni­ti­on of the safe pro­duct and the pla­cing on the mar­ket in the case of online trade are new. In future, all eco­no­mic ope­ra­tors will be sub­ject to exten­ded noti­fi­ca­ti­on and coope­ra­ti­on obli­ga­ti­ons vis-à-vis the mar­ket sur­veil­lan­ce aut­ho­ri­ties, which must be infor­med via the Euro­pean Commission’s Pro­duct Safe­ty Alert Busi­ness Gate­way tool if a pro­duct is found to be unsafe, irre­spec­ti­ve of the degree of risk iden­ti­fied. A so-called pro­duct respon­si­ble per­son must be estab­lished in the EU as a cont­act per­son for each pro­duct pla­ced on the market.

In addi­ti­on, the requi­re­ments for the imple­men­ta­ti­on of con­su­mer recalls have been har­mo­nis­ed and more incen­ti­ves have been crea­ted to make con­su­mer par­ti­ci­pa­ti­on in recall mea­su­res more attrac­ti­ve. In future, recalls must be initia­ted by an appro­pria­te­ly mark­ed let­ter, which must be writ­ten in all mem­ber sta­te lan­guages in which the respec­ti­ve pro­duct has been pla­ced on the mar­ket. Manu­fac­tu­r­ers will be obli­ged to use all available infor­ma­ti­on chan­nels, inclu­ding social media, to inform con­su­mers about a recall. In this con­text, they must not use tri­via­li­sing terms such as “vol­un­t­a­ry”, “pre­cau­tio­na­ry” or even “in rare/specific cases” in order not to mis­lead con­su­mers about the urgen­cy of a measure.

The imple­men­ted mecha­nisms, if imple­men­ted appro­pria­te­ly, will result in signi­fi­cant­ly increased con­su­mer pro­tec­tion and a noti­ceable inten­si­fi­ca­ti­on of mar­ket sur­veil­lan­ce acti­vi­ties. The short imple­men­ta­ti­on peri­od gives eco­no­mic actors rela­tively litt­le time to adapt their pro­ces­ses to the new requirements.


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