Main features of the planned revision of the Product Liability Act
On 11 September, the BMJV published a draft bill to modernise product liability law (ProdHaftG‑E). The existing Product Liability Act (ProdHaftG), which implements Directive 85/374/EEC, is to be repealed and replaced by a new law of the same name. The background to this is Directive (EU) 2024/2853, which must be transposed into Member State law by 9 December 2026.
Structure of the draft bill
The new law will increase the amount of text by around 50%. Part 1 regulates the liability of the manufacturer (Sections 1–9 ProdHaftG‑E), Part 2 regulates the liability of other parties (importers, representatives, fulfilment service providers, suppliers, online platforms, Sections 10–13 ProdHaftG‑E) . Part 3 contains provisions on claims for damages (Sections 14–18 ProdHaftG‑E) and Part 4 on the law of evidence (Sections 19, 20 ProdHaftG‑E). Part 5 (Final Provisions) distinguishes between other liability regulations, stipulates the disclosure requirement for judgements and decisions, and provides for a transition period for the application of the law (Sections 21–23 ProdHaftG‑E).
Liability
The liable party is primarily the manufacturer, legally defined as the party who develops or manufactures a product themselves – or has it designed or manufactured, Section 3 ProdHaftG‑E. Equally responsible is the quasi-manufacturer, who merely affixes their name, brand or other distinguishing mark to the product and acts as the manufacturer. Finally, anyone who significantly modifies a product without the manufacturer’s consent and places it on the market or puts it into service is also considered a manufacturer (Section 5 ProdHaftG‑E).
The product that must be defective can initially be any movable item, including raw materials. The Directive cites the raw materials ‘gas and water’ as examples (Recital 16 of the Product Liability Directive). Intangible items also include electricity and, for the first time in future, software (with the exception of free open-source software) and digital design documents.
The basis for liability is a defect in one of these products that causes damage to a person’s body or health, other personal property (excluding the defective product itself) or personal data.
The manufacturer must have put the product into circulation (Section 9(1) No. 1 ProdHaftG‑E). Because placing on the market is linked to the territory of the European Union, the legislator wishes to cover cases in which the product has been placed on the market outside this territory and subsequently imported. Although this would not be necessary, it does not extend the scope of application, but merely clarifies the situation.
Defect
A product is defective if it does not offer the safety required by law or expected. For the assessment, Section 7 of the Product Liability Act (ProdHaftG) contains seven different criteria, which are not exhaustive. These include self-learning functions (in particular AI systems, machine learning), cyber security requirements, product recalls and the question of whether the purpose of the product is precisely to prevent damage.
Time of defect
The decisive factor is generally the date on which the product was placed on the market or put into service. However, the Directive contains provisions that also relate to conduct after these dates. If the manufacturer still has control over the product, liability only ends when this control is relinquished. Control exists, for example, if the manufacturer installs or can install software updates (Section 8(2) ProdHaftG‑E).
Liability of other economic operators
If the manufacturer is not based in the EU, the importer and the authorised representative are liable. If neither of these exist, the fulfilment service provider is liable. If this does not exist either, each supplier (distributor) is liable if they fail to comply with the claimant’s request to identify one of the aforementioned parties. Under certain conditions, if no actual actor is based in the EU, the provider of an online platform may also be liable.
Damages
The claim for damages is not limited in amount. In the event of damage to data, the necessary amount of money may be demanded immediately instead of restoration. If several parties are responsible for the damage, they are jointly and severally liable.
The claim expires three years after the date on which the creditor became aware or should have become aware of the defect in the product, the damage and the identity of the debtor. The period therefore does not begin at the end of the year.
According to Section 17 of the Product Liability Act (ProdHaftG‑E), claims for damages expire ten years after the product was placed on the market or put into service, unless proceedings against the debtor have already been initiated. The ten-year period begins anew with each significant change to the product. If physical injury or damage to health only becomes apparent gradually (latency period), the period is 25 years.
Law of evidence and legal presumptions
Both the claimant and the defendant may, under the conditions set out in Section 19 of the ProdHaftG‑E, apply to the court for the disclosure of evidence by the other party. The prerequisite is that plausible arguments have been presented based on facts and evidence. For the plaintiff, this means that he must conclusively demonstrate the requirements for his claim and why, based on concrete evidence, there is a certain probability that he is also entitled to damages. The defendant must then disclose any evidence in his possession that is relevant to the proceedings. This may also mean that documents must first be created from existing information.
It is possible to refuse to comply with a court order to disclose evidence. However, in accordance with Section 20(1)(1) of the ProdHaftG‑E, the product will then be presumed to be defective.
The product will also be presumed to be defective if the claimant proves a violation of German or European product safety law that should have protected against the injury that occurred.
Publication of judgments and decisions
For the first time in German law, a disclosure requirement for court decisions has been established. Final decisions and judgements in proceedings concerning claims under the Product Liability Act (ProdHaftG) by appeal, revision, complaint and legal appeal courts must be published in electronic form (anonymised or pseudonymised).
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