GERMANY Trends and Developments Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
New Regulations Shaping the Future of Product Liability Disputes The new General Product Safety Regulation A major change affecting the legal fields of prod - uct liability and product safety is the entry into force of the General Product Safety Regulation (EU) 2023/988 (the “GPSR” ) on 13 December 2024. The rules introduced by the GPSR reflect the increasing connectivity and digitalisation of products. The GPSR broadens product safety assessment criteria to include whether a prod - uct’s appearance might prompt unintended use, especially by children. It also requires the consideration of cybersecurity features where relevant to protect against external threats. Additionally, it mandates evaluating the effects of a product’s connectivity and interactions with other products. This means economic operators must now account for external influences and risks beyond their own operations. With the growth of economic players impacting product safety, the GPSR expands the scope of European product safety law to cover fulfil - ment service providers and online marketplace operators. Online marketplaces now face exten - sive obligations, including the requirement to establish a single contact point for communi - cation with market surveillance authorities and consumers and to implement internal processes to ensure product compliance. However, the most dramatic change introduced by the GPSR is the right of consumers to rem - edy in case of a product recall. The economic operator responsible for a recall must provide consumers with an effective, free and prompt remedy. They must offer consumers at least two options: repair, replacement with a safe product of equal value and quality or a refund at least
equal to the price paid by the customer. If other remedies are impossible or disproportionate, only one remedy may be offered. Replacement is limited to a safe product of the same type and value (and not necessarily a new one) and refunds must at least cover the original purchase price without anything being deducted for use. Consumers do not have to bear any costs for returning the product. In complex supply chains, this may mean the responsible party must reim - burse a value that is more than the value of the component they contributed to the end product, potentially creating significant financial risks. Under the GPSR, consumers are granted rem - edies that operate alongside the rights provided by German warranty law but with notable differ - ences. These remedies are not bound by any limitation period, meaning that economic oper - ators remain liable indefinitely while claims are time-restricted under warranty statutes. Addi - tionally, businesses are required to take the ini - tiative in offering remedies to consumers rather than waiting for a complaint or claim to be made. For companies involved in the supply chain, this perpetual responsibility significantly increas - es both potential costs and exposure to legal action, as consumers can seek remedies long after the usual warranty period has expired. Con - sumers can choose whether to pursue claims under warranty law or the GPSR’s right to rem - edy. They will make the choice on the basis of which is more advantageous. These claims may be directed at different entities within the sup - ply chain. Furthermore, the right to remedy can be enforced collectively through class actions, amplifying the risk of widespread legal chal - lenges for economic operators.
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