GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
measures already taken, a certain amount of time can be allowed for rough planning of the corrective measures to be taken to take place. However, these corrective measures must be ini - tiated and implemented as soon as possible to ensure effective consumer protection. Notification of Accidents In addition, Article 20 of the GPSR introduces a new obligation for manufacturers to “immediate- ly” notify the competent authorities of accidents related to the safety of products that resulted in an individual’s death or in serious effects to an individual’s health and safety. This notification also has to be made through the Safety Business Gateway. Importers, distributors and providers of online marketplaces are accordingly obliged to report relevant accidents to the manufacturer. 1.5 Penalties for Breach of Product Safety Obligations The GPSR does not contain provisions on pen - alties themselves. However, it does author - ise member states to enact penal provisions. While the GPSR has not yet been implemented into German national law, the existing German ProdSG continues to apply. Intentional or negligent infringements of certain provisions of the ProdSG or directly applicable EU law can be considered administrative viola - tions. In most cases, a fine of up to EUR10,000 can be imposed. However, in specific and more severe cases it can be up to EUR100,000. In addition, the profit made from the offence can be confiscated as part of the fine. This often represents a much larger proportion of the total amount than the actual fine. The persistent repetition of certain intentional offences or endangering the life, health or the property of significant value of another person
can be considered a criminal offence and lead to a prison sentence of up to one year or a criminal fine being imposed. However, the ProdSG is expected to be revised in the near future in light of the GPSR coming into force. 2. Product Liability 2.1 Product Liability Causes of Action and Sources of Law Claimants bringing product liability cases before German courts seek damages and compensa - tion for pain and suffering caused by a defective product. Product liability cases will be based on the alleged infringement of the Product Liability Act ( Produkthaftungsgesetz or the “ProdHaftG” ) or tort law. ProdHaftG According to Section 2 of the ProdHaftG, the term “product” includes any movable item (even if it is part of another movable or immov - able item) as well as electricity. The question of whether specific types of software can be con - sidered “product” according to Section 2 of the ProdHaftG has been a controversial one for years. It is likely that this dispute will be resolved when the European Product Liability Directive (EU) 2024/2853, which classifies software as “product” , is implemented into national German law by 9 December 2026. Liability under the ProdHaftG is limited to the defective product causing a person’s death, bodily harm, damage to health or damage to property.
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