GERMANY Trends and Developments Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
In addition, public prosecutors are increasingly demanding that companies conduct their own internal investigations and subsequently pro - vide the relevant documents and final reports. This spares often understaffed public prosecu - tor’s offices the burden of conducting their own investigations. For the company, which then has to hire a law firm or business consultant and a forensic expert for data collection and evalua - tion, internal investigations represent a consider - able financial burden. Nevertheless, it can be advantageous for a com - pany to carry out its own investigations instead of being subject to a search by the public pros - ecutor’s office. In any case, whether or not to comply with a request from the public prosecu - tor’s office to conduct an internal investigation is a decision that must be considered carefully. Obligation to Implement Interim Measures In complex supply chains, organising a recall can take some time. It can be particularly chal - lenging to obtain sufficient spare parts for the repair of affected products. Several months may pass between a company becoming aware of a defect and the start of the recall campaign. In practice, manufacturers are increasingly being asked to implement interim measures during this period to prevent harm to consumers. In cases involving an immediate threat to life, limb or health, waiting for the start of a recall campaign is often insufficient.
The measures to be taken to avert imminent danger depend on the individual case. Possi - ble interim measures until the recall campaign is carried out could include: • warnings; • temporary decommissioning; • urgent recommendations not to use the prod - uct; • restrictions on use (eg, compliance with cer - tain maximum speeds, certain functions not being used, not being used in certain outdoor conditions or only being used with protective equipment); • intermediate technical solutions; and • behavioural and warning instructions for product users (eg, keep away from potentially dangerous equipment, switch off the product before maintenance and only charge batteries to 75% capacity). If the manufacturer does not take adequate interim measures and accidents occur between the manufacturer becoming aware of a safety issue with one of their products and the start of the recall campaign, the manufacturer can be held liable, including for criminal offences.
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