SWITZERLAND Trends and Developments Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
• It requires economic operators responsible for a product safety recall to offer consum - ers effective, cost-free and timely remedies, which include at least two of the following remedies: (a) the repair of the recalled product; (b) a replacement of the recalled product with a safe one of the same type and at least the same value and quality; or (c) an adequate refund of the value of the recalled product, provided that the amount of the refund shall be at least equal to the price paid by the consumer. The State Secretariat for Economic Affairs, ie, the responsible Swiss authority, is now analysing the GPSR and will partially revise the Swiss Product Safety Act (PSA) and the Swiss Product Safety Ordinance (PSO) accordingly. However, no fur - ther information regarding this partial revision is available at the time of writing. Since the PSA transposed the former EU general product safety directive into Swiss law in order to reduce tech - nical barriers to trade by harmonising legislation with the rules of the EU, it can be assumed that the partial revision of the PSA is also designed to maintain existing harmonisation to facilitate trade and secure continued access to the EU market. Even though the PSA has not yet been revised, Swiss companies operating in the EU or in Switzerland should be familiar with the GPSR, as the GPSR is relevant for them, either directly because of their EU business or indirectly due to the expected change in Swiss law. In the mean - time, differences between the EU and Swiss legal systems should be considered from a practical perspective, eg, Switzerland is not a member of the EU “Safety Gate” system, formerly known as RAPEX, which enables the rapid exchange of information on dangerous non-food products in the EU. Therefore, any corrective measures (including recalls if necessary) must be co-ordi -
nated separately with the respective surveillance authorities in the EU and Switzerland. EU Directive on Liability for Defective Products and the Swiss Product Liability Act On 8 December 2024, Directive (EU) 2024/2853 on liability for defective products (PLD) entered into force, requiring EU member states to imple - ment it into their national laws by 2026. With its entry into force, the existing system on product liability, under which producers compensate consumers for damage caused by defective products, has been updated to reflect develop - ments linked to the transition towards a circular and digital economy as well as the rise of AI. The PLD provides a number of important provi - sions. • It provides for the inclusion of software in the definition of “product” , excluding however free and open-source software that is devel - oped or supplied outside the course of a commercial activity. • The PLD also provides for the enlargement of potentially liable parties, for example, liability of online platforms for defective products under certain circumstances. In addition to the manufacturer of a defective product, the manufacturer of a defective component can also be held liable. Since “component” means any item, whether tangible or intangible, or raw material or any related service, that is integrated into, or inter-connected with, a product, liability can also extend to service providers such as data providers. For defec - tive products manufactured outside the EU, the importer, the authorised representative of the manufacturer or the fulfilment service providers can be held liable. • In terms of damages, the PLD provides compensation for the destruction or corrup -
248 CHAMBERS.COM
Powered by FlippingBook