GERMANY Trends and Developments Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
• if the claimant proves that the product does not comply with mandatory product safety requirements; or • if the claimant demonstrates that the damage was caused by an obvious malfunction of the product during reasonably foreseeable use. The courts will presume the defectiveness of the product and the causal link between the defect and the damage, or both, where the claimant demonstrates that they are likely and where despite the disclosure of evidence they face excessive difficulties in proving those prerequi - sites for liability. The defendant has the right to rebut any of the presumptions but this may be quite difficult, especially with regard to complex matters such as cybersecurity and AI. These amendments represent a considerable departure from the previous Product Liability Directive, which only briefly addressed issues relating to the burden of proof and did not pro - vide for any simplification for the claimant. The new Product Liability Directive must be implemented into domestic law by 9 December 2026. It is likely that the German legislator will revise, or even completely rewrite, the German Product Liability Act ( Produkthaftungsgesetz or the “ProdHaftG” ). One particularly interesting aspect will be how the obligation to disclose evidence, which is currently unknown in German law, will be implemented. The new German Accessibility Improvement Act The new German Accessibility Improvement Act ( Barrierefreiheitsstärkungsgesetz or the “BFSG” ), which comes into effect on 28 June 2025, intro - duces significant obligations for manufacturers, importers and distributors regarding the acces - sibility of certain products and services. These
economic operators are only permitted to place covered products on the market if they meet the specified accessibility requirements, which are designed to ensure usability for people with dis - abilities. The BFSG applies to a range of products, includ - ing hardware, self-service terminals, consumer devices for telecommunications and e-book readers, provided they are offered to consumers. Economic operators involved in making these products available are collectively responsible for compliance in the same way as traditional product liability frameworks are. Micro-enterprises are generally exempt but all other businesses must ensure their products are accessible or risk enforcement actions. If a prod - uct fails to meet accessibility standards it can - not be marketed and the responsible party must notify the relevant market surveillance author - ity. Non-compliance can result in the authority ordering the withdrawal or recall of products as well as imposing fines up to EUR100,000. The BFSG also introduces obligations for test - ing, verification and providing information about accessibility, including a requirement for an accessibility declaration. Failure to comply may not only trigger regula - tory sanctions but also expose companies to warnings and legal actions from consumer asso - ciations and competitors as the requirements are likely to be considered market conduct rules under unfair competition law. The overall approach closely aligns accessibility obligations with established principles of product liability, making all parties in the supply chain account - able for ensuring that accessible products reach the market.
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