Incorrect CE marking
Who is liable when a CE marking is affixed without any justification on the packaging and not on the product itself?
In accordance with Article 3 (1) of the German Product Safety Act (ProdSG), a product which is covered by an ordinance as in Article 8 (1) of the ProdSG may only be placed on the market if it complies with the requirements of the relevant ordinance.
In the final analysis, this also routinely includes the affixation of a CE marking.
The CE marking must be affixed visibly, legibly and indelibly on the product or its name plate. Only if the product does not permit or justify such affixation is the CE marking to be affixed on the packaging and the accompanying documents (Article 7  of the ProdSG).
Judgement by Higher Regional Court
In this context, the Higher Regional Court of Cologne addressed itself in a recent judgement to the question of whether or not a distributor is to be held liable for an incorrectly affixed CE marking (Judgement of 28 July 2017 – 6 U 193/16). A distributor – who was not the manufacturer – had been selling LED lamps whose CE marking was not on the lamps themselves. Instead, it was only affixed on the packaging. The plaintiff argued that by selling the lamps, the distributor had infringed against the regulations of the ProdSG. He petitioned for forbearance from further sales, claiming that by such infringement the distributor was acting in an unfair and thus anti-competitive way (Section 3a of the Unfair Competition Act [UWG] in conjunction with Articles 3, 7 and 8 of the ProdSG).
The court, however, was not of the opinion that the conditions for such a claim for forbearance had been met. The court explained that, whilst it was true that according to Article 7 (2) 2. of the ProdSG it was forbidden to place a product on the market if it did not have the CE marking (correctly) affixed although an ordinance (in this case the Ordinance on Substances Used in Electrical and Electronic Devices [ElektroStoffV]) stipulates such affixation. The point however was that this did not apply to the distributor, whose obligations were conclusively defined in Article 6 (5) of the ProdSG. According to that paragraph, the distributor must not place on the market consumer products of which he knows, from the information available to him or from his own experience, that they do not comply with the requirements of the ProdSG.
In the view of the court, this means that there is only an obligation to verify whether or not the product has a CE marking at all. There is, by contrast, no fundamental obligation to research whether or not the CE marking is affixed (correctly or incorrectly) to the packaging. As to whether or not the marking complies with the formal specifications (e.g. such as govern its positioning or size), that was a matter that might be examined by a court, but not by the distributor of the product. In the view of the judges, this restriction of the obligation to examine can be derived both from the ProdSG and also routinely from the ordinances to be applied alongside it (e.g. the ElektroStoffV and the Electromagnetic Compatibility Act [EMVG]).
This judgement cannot be appealed at the BGH and is therefore legally binding.
[November 27th, 2017]