Incor­rect CE marking

Who is lia­ble when a CE mar­king is affi­xed wit­hout any jus­ti­fi­ca­ti­on on the pack­a­ging and not on the pro­duct itself?

Legal back­ground

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 [3] 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.


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