GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
liability cases. As a result, the general rules for appeals apply. An appeal may be lodged against final judg - ments issued by courts of first instance (Sec - tions 511 et seq of the ZPO within one month of the fully detailed judgment being served and no later than five months after the judgment is pronounced. However, the appeal is only permit - ted if the amount in dispute exceeds EUR600 or if the court of first instance expressly allows the appeal in its judgment. The claimant must then submit a statement of grounds of appeal within one month. This deadline can be extended by one month without the respondent’s approval. Following the decision of the court of the sec - ond instance, the only recourse left is an appeal to the German Federal Court of Justice (the “BGH” ). The BGH will only hear the case if the court of second instance grants permission of appeal or the BGH does so itself. Both courts will only do so if the legal matter is of funda - mental significance or a decision by the BGH is necessary for the further development of the law or to ensure uniform adjudication. The BGH will only make a judgment based on points of law and challenges based on factual determinations are not permitted. 2.12 Defences to Product Liability Claims The ProdHaftG explicitly specifies several instances in which the producer is excluded from liability. This is where the: • producer did not place the “product” on the market; • defect which caused the damage did not exist at the time the “product” was placed on the market; “product” was not produced for
sale or distribution for economic purposes, nor manufactured or distributed in the course of the producer’s professional activity; • defect is due to the “product” complying with mandatory regulations at the time it was placed on the market; or • it was not possible to discover the defect at the time of placing the “product” on the market according to the level of scientific and technical knowledge. The defendant may also dispute the conditions necessary for establishing liability. They may specifically contest that they are in fact not the manufacturer of the “product” , that there was no product defect when the “product” was placed on the market, that the claimant did not sustain any protected damage or that the damage was not causally attributable to the product defect. In principle, the same defence rights exist under tort law. Unlike under the ProdHaftG, a manu - facturer can also be held liable under tort law if they become aware of a product defect after placing the “product” on the market and does not take corrective measures in good time. In this case, the manufacturer can successfully defend itself if it informed the customer of cor - rective measures to be taken but the customer did not comply with the request and suffered damage as a result. Finally, if the relevant limitation period has expired, the manufacturer can invoke the defence of the statute of limitations (see 2.3 Time Limits for Product Liability Claims ). 2.13 The Impact of Regulatory Compliance on Product Liability Claims Whether “product” is considered defective under the ProdHaftG depends on the legitimate safety expectations of product users. In this
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