SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
Notification of Dangerous Consumer Products to the Competent Authorities of the Member States by Pro - ducers and Distributors, in accordance with Article 5, paragraph 3 of the EU General Product Safety Direc - tive (2001/95/EC). It remains to be seen whether the planned revision of the Swiss Product Safety Act will introduce a more precise timeline for notifications. In connection with the recent cereulide contamination in infant formula, the relevant authorities, following the initial recall, immediately requested the necessary documentation from the companies to verify whether they had complied with legal requirements for precau - tionary health protection and responded in a timely manner. Consequently, the timeliness of the notifica - tion is the subject of an ongoing investigation. The Swiss Product Safety Act defines the minimum content of the notification. There are no legal require - ments as to the form of the notification. However, some regulatory bodies provide for voluntary noti - fication templates on their websites but emphasise that the completion of the form should not delay the notification. 1.5 Penalties for Breach of Product Safety Obligations Generally, any person who fails to notify the authorities in a timely manner of a dangerous or potentially dan - gerous consumer product, as required under Article 8, paragraph 5 of the Swiss Product Safety Act, or who breaches the duty to collaborate with the enforcement authorities (Article 11, Swiss Product Safety Act) is liable for a fine of up to CHF40,000 (in the case of wilfulness) or CHF20,000 (in the case of negligence). Further, any person who intentionally places a product on the market that does not meet the requirements of Article 3, paragraphs 1 and 2 of the Swiss Product Safety Act (general safety requirements) and thereby endangers the safety or health of users or third parties shall be liable to a custodial sentence not exceeding one year or to a monetary penalty (if the offender acts on a commercial basis, a custodial sentence up to three years or a monetary penalty). Further sanctions may apply in cases of negligence, false certifications, the unauthorised issuance of declarations of con - formity or the use of labelling or warning and safety instructions that do not correspond to the specific hazard potential of a product. Sectoral law, however,
sometimes provides for different criminal liability. In any case, the law sets forth that the person within the producer’s organisation who is responsible for the offence should be punished. The principal is only pun - ished if they wilfully or negligently, in breach of a legal obligation, failed to prevent the offence. There are no publicly available examples of compa - nies being prosecuted or fined for breaching these obligations. However, that does not mean that no such cases exist. Under Swiss criminal prosecution law, the courts may generally only publish a judgment if the publication is in the public’s interest or in the interest of the injured party. 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law Depending on the respondent of the action (eg, a pro - ducer, distributor or retailer), an injured party would likely base its claim for damages on the following grounds. Against the Producer The Federal Product Liability Act provides for the non- contractual strict liability (ie, not depending on fault) of a producer for damages if a defective product leads to the death or injury of a person or the damaging or destruction of property. “Producer” means the person who has manufactured the end product, a basic mate - rial or a partial product; and any person who claims to be the producer by affixing its name, trade mark or other distinctive sign to the product (“quasi-produc - er”) as well as any person importing the product for distribution purposes to Switzerland. The liability is only triggered if the product is deemed defective – ie, if it does not offer the safety that one may expect con - sidering all the circumstances (such as the get-up or overall appearance of the product, the expected use or the time of market placement). The Federal Product Liability Act, however, provides for several defences (please refer to 2.12 Defences to Product Liability Claims for further details). In addition, the injured party could base a damages claim on contract (if the producer is the seller and
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