AUSTRIA Law and Practice Contributed by: Andreas Eustacchio, EUSTACCHIO
lic announcements, depending on the product, the distribution channel and the group of affected con - sumers. 1.4 Obligations to Notify Regulatory Authorities Notification is based on a risk assessment and is usually triggered by specific events such as injuries, accidents, consumer complaints, internal testing or risk assessment results, or information received from market surveillance authorities or reports by whistle- blowers within the economic operator (eg, the produc - er) or from outside, in line with the EU Whistleblowing Directive. This law expressly covers product safety matters and is implemented in Austria in the Hinweis- geberInnenschutzgesetz (HSchG). Where a manufacturer considers or has reason to believe that a product is dangerous, it must imme - diately inform, via the Safety Business Gateway, the market surveillance authorities of all member states where the product has been made available on the market. Importers and distributors who become aware of such information must immediately inform the manufactur - er. A direct notification duty of importers or distributors to the market surveillance authorities is not foreseen: either the manufacturer submits the notification itself, or it instructs the importer or one of the distributors to do so. The GPSR does not grant importers or distribu - tors a right to refuse such an instruction. In an earlier draft version of the EU Regulation, a short deadline of two working days had been proposed. Where a product has caused an accident which resulted in death or serious harm to a person’s health (including injuries, illness or chronic effects), the manufacturer must ensure that this accident is notified without undue delay via the Safety Business Gateway to the authority of the member state where the accident occurred, giving at least the product type, identification number and, where known, the circumstances; further information must be supplied on request. Importers and distributors who become aware of such an accident must without undue delay inform the manufacturer, who must then either notify
the authority itself or instruct an importer or distribu - tor to do so. Non-EU manufacturers must ensure that an EU based economic operator (such as their EU responsible per - son or importer) is available to interact with market surveillance authorities and, where appropriate, sub - mit the relevant notifications on their behalf. 1.5 Penalties for Breach of Product Safety Obligations The GPSR does not prescribe specific penalty amounts but leaves it to the member states to lay down their own sanctioning regimes. Austria has to date not yet adopted specific financial sanctions for breaches of obligations under the GPSR. Under the still-applicable Austrian Product Safety Act 2004 (PSG 2004), the maximum administrative fine is EUR25,000. Under the GPSR, penalties must be effective, proportionate and dissuasive. It is therefore open to doubt whether the existing Austrian sanction framework will meet this standard in the long term. 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law The main causes of action are: • statutory non-fault product liability (“strict liability”) under the Austrian Product Liability Act based on the current and the New EU-Product Liability Direc - tive; • fault-based tort law; • fault-based contract law, both under the Austrian Civil Code (ABGB) The burden of proof is on the claimant, which must demonstrate: • the defect in the product; • the damage caused by the product; and • the causal link between damage and defect. Action is against:
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