GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
This ensures a close connection between the dispute and the chosen court. 2.5 Pre-Action Procedures and Requirements for Product Liability Claims In practice, there are no compulsory pre-action procedures that must be completed before legal proceedings can be initiated. Although Section 15a(1) number 1 of the Introductory Act to the Code of Civil Procedure gives federal states the option to require a pre-trial dispute resolu - tion procedure for claims of less than EUR750, this provision is meaningless in practice as the mandatory pre-trial dispute resolution has been abolished in all federal states for these cases. Product liability claims and lawsuits are regarded as typical cases and are processed by the courts in the same way as any other civil law claims. The claimant can decide whether or not to initiate formal proceedings immediately. Some claim - ants may choose to conduct a debt recovery procedure in the hope of obtaining an enforce - ment order more quickly than through regular civil proceedings. 2.6 Rules for Preservation of Evidence in Product Liability Claims Neither German product liability law nor civil pro - cedural law contain specific provisions regarding the preservation of evidence. However, if “product” was placed on the mar - ket on or after 13 December 2024, compliance with the obligation to preserve documentation on product safety and risk-related topics under the GPSR must be ensured. According to Arti - cles 15 (2) and 15 (4) of the GPSR, the respon - sible economic operator must be able to make a full description of the risks associated with the “product” , the related complaints and any
known accidents available to the market surveil - lance authorities as well as a description of any corrective measures taken in relation to the risk for a period of ten years. In product liability cases, a defendant’s chances of success in legal proceedings may depend heavily on how diligently they preserve informa - tion regarding the safety of a specific “product” . Because the Product Liability Directive has to be implemented into national law by 9 December 2026, the importance of preserving evidence in product liability cases will increase in the future, as the manufacturer of “product” may be required to disclose evidence in line with Article 9 of the Product Liability Directive. The content and scope of product safety documentation will therefore be essential in determining the out - come of a product liability case. It is therefore in a product manufacturer’s best interests to diligently preserve evidence proving that “product” is defect-free. 2.7 Rules for Disclosure of Documents in Product Liability Cases German law currently lacks specific regulations concerning the disclosure of documents in prod - uct liability cases. However, this will change drastically once the new EU Product Liability Directive is transposed into national German law. As part of its imple - mentation, German product liability law will have to introduce a new right to disclosure. To obtain disclosure, the claimant will only need to make the damages claim appear plausible. The courts may order disclosure if it is consid - ered necessary and proportionate. However,
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