GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
In the event of personal injury liability will be lim - ited to a maximum amount of EUR85 million. In the event of property damage a claim based on the ProdHaftG will only be successful if the dam - age is inflicted to another item than the defective product itself and if that other item was intended for private use or consumption and was mainly used for this purpose by the injured party. In addition, the injured party must pay damages of up to EUR500 themselves. However, the new Product Liability Directive will cause the previous self-liability for property damage and the maxi - mum liability of EUR85 million to be eliminated in future. Injured parties will claim that they have been harmed as a result of faults in product design, manufacturing or instruction and the burden of proof will be on them to prove their assertions. The following economic operators may be con - sidered as potential defendants: the product manufacturer, component manufacturers, quasi- manufacturers whose name or brand is shown on the “product” , importers and suppliers. Tort Law Tort law is another basis for product liability claims, specifically under Section 823 of the German Civil Code ( Bürgerliches Gesetzbuch or the BGB, so-called producer liability). Producer liability originates from the general duty to ensure safety. This encompasses obligations before, and especially after, “product” is placed on the market. It means that a manufacturer who is responsible for creating a source of danger by placing a defective product on the market must, within the limits of what is technically possible and economically reasonable, ensure that prod - uct users and other third parties are not harmed
in any legally protected way under Section 823 of the BGB (ie, life, body and health, property). From the moment “product” is released on the market, the manufacturer has to carry out active product monitoring. If product hazards have been observed, the manufacturer must warn about them at the very least and can, where there are threats to high-ranking legal interests be obliged to initiate a recall. The manufacturer may also be required to take interim measures during the processing of a potentially time-con - suming recall. The claimant has to prove the existence of a product defect, the damage caused and the causal link between the two. However, prima facie evidence (so-called Anscheinsbeweis ) might facilitate the burden of proof for the injured party. It can be assumed when a typical sequence of events has occurred that there has been a breach of duty by the manufacturer (see 2.9 Burden of Proof in Product Liability Cases ). 2.2 Standing to Bring Product Liability Claims Individuals or legal entities whose legal interests have been harmed by a defective product are entitled to make a product liability claim. However, German civil procedural law also pro - vides for collective redress (see 2.16 Existence of Class Actions, Representative Proceed- ings or Co-ordinated Proceedings in Product Liability Claims ). Through a class action lawsuit ( Verbandsklage ) under the Consumer Rights Enforcement Act ( Verbraucherrechtedurchset- zungsgesetz or the “VDuG” ), consumer associa - tions can establish legal relationships or actual or legal requirements for claims for a large num - ber of consumers against an entrepreneur.
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