GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
the lawsuits succeeding is generally considered very low. In a recent ruling on 19 December 2024, the ECJ (case number C-157/23) provided further clarifi - cation on the definition of “manufacturer” in the context of product liability, significantly increas - ing the liability risk for distribution companies. The case in question involved a claim against the Italian sales company Ford Italia relating to a product liability defect in a vehicle. The vehicle’s manufacturer was the German company Ford Werke AG. According to the ECJ’s decision, even a partial coincidence in name between a distributor and the manufacturer is sufficient to establish the distributor’s liability as a quasi- manufacturer. 3. Recent Policy Changes and Outlook 3.1 Trends in Product Liability and Product Safety Policy Expanding consumer protections have been seen in Germany and the EU for several years now. This is not only reflected in new legisla - tion but in case law as well. Additionally, product requirements are becoming increasingly strin - gent, making it easier for consumers to assert claims against manufacturers. Legislation is also increasingly being adapted to accommodate the growing digitalisation of “products” and the increasing use of artificial intelligence (AI). For example, software is now explicitly recognised as “product” . In addition, cybersecurity features and evolving, learning functions must be taken into account when assessing the safety or defectiveness of “prod- ucts” .
These trends are reflected in recent legislation such as the: • GPSR; • Product Liability Directive (EU) 2024/2853; • VDuG; • Accessibility Improvement Act ( Barrierefrei- heitsstärkungsgesetz or the “BFSG” ) and • AI Regulation (EU) 2024/1689. Manufacturers are also increasingly required to take interim measures in the event of a product risk being discovered. This applies for the time between the discovery of a defect and the start of a recall. During this period, manufacturers are also required to eliminate risks for product users as much as possible. Since the diesel issue emerged, there has been a noticeable increase in allegations of fraud by investigating authorities related to claims about product characteristics. In the context of product liability under criminal law, explicit statements about “product” that later prove to be false or inaccurate as well as the failure to disclose important product features to custom - ers can both be significant in terms of criminal liability for fraud. 3.2 Future Policy in Product Liability and Product Safety Due to changes in EU-level legislation, amend - ments to national legislation are expected in the near future in relation to the two main German Acts that regulate product safety and product liability (the ProdSG and the ProdHaftG). The GPSR is directly applicable in EU member states. However, the ProdSG is still currently in force and its provisions largely overlap with those of the GPSR. It is likely that the ProdSG will be amended to serve as an implementing
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