GERMANY Law and Practice Contributed by: Michael Molitoris, Tanja Hütt, Maike Dickmann and Simon Marchlewski, SZA Schilling, Zutt & Anschütz
withdrawal or recall (as appropriate). Importers of products into the EU and distributors must similarly ensure that corrective measures are taken in these cases. Article 36 of the GPSR contains detailed instruc - tions on the format of recall notices provided to consumers. It provides for example that a recall notice will include: • a headline consisting of the words “Product safety recall” ; • a clear description of the recalled product which might include pictures; • a clear description of the hazard associated with the recalled products, avoiding any expressions that may decrease the consum - ers perception of the risk such as “voluntary” , “precautionary” or “in rare situations” ; • a clear description of the actions to be taken; and • the remedies available. The European Commission has set out a tem - plate for a recall notice in the Commission Imple - menting Regulation (EU) 2024/1435. Article 37 of the GPSR states that the respon - sible economic operator will offer the consumer at least two of the following remedies for free: • repair of the recalled product; • replacement of the recalled product; or • adequate refund of the value of the recalled product. The amount of the refund will be at least equal to the price paid by the consumer, which is often considerably more than the original costs incurred by the manufacturer for production.
Exceptions to this only apply if it would be impossible or disproportionate to offer two of the remedies, although case law has yet to clarify the circumstances under which remedial actions are to be considered as disproportionate. The provision therefore creates a completely new right of remedy for customers under EU law. It establishes an independent liability regime alongside the previous national liability regime and is not subject to the general rules on limita - tion periods. 1.4 Obligations to Notify Regulatory Authorities Notification of Dangerous Products Alongside the obligation to take corrective measures, under Article 9 (8) of the GPSR, the manufacturer has to “immediately” inform the market surveillance authorities if it considers or has reason to believe that a product it has placed on the market is a dangerous product within the meaning of the GPSR. For this pur - pose, the manufacturer will give details, eg, of the risks involved, any corrective measures already taken and the quantity of products still on the market. The notification must be made via the Safety Business Gateway. This is a platform that can be used to notify multiple market sur - veillance authorities simultaneously, especially in different countries. The obligation to “immediately” inform the mar- ket surveillance authorities through the Safety Business Gateway also applies to importers and providers of online marketplaces (although to a lesser extent). Distributors must ensure that the respective notification is carried out. The term “immediately” is not defined in the GPSR and rigid deadlines are not laid out. As the notification will give details on corrective
98
CHAMBERS.COM
Powered by FlippingBook