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- Herausgeber: tredition
- Kategorie: Gesellschafts- und Liebesromane
- Sprache: Englisch
The Handbook (eBook) of Product Liability / Recall / Insurance in Germany introduces readers to the fundamentals of product liability law in Germany (current as of 01.01.2012) by presenting the content in the following areas: Product Liability This chapter provides the reader with an overview of product liability under German law. It covers claims for damages caused by a defective product under different statutory sources, including the different preconditions and consequences of such claims. Product Recall This chapter informs the reader of the obligations of producers and distributors under German law covering product recall. Furthermore, it provides information regarding the relevant authorities covering product recalls for the main sectors of industry and commerce. Insurances This chapter explains the different and specific insurances that cover product liability in Germany, such as: Business Liability Insurance, Product Liability Insurance, Product Recall Insurance, Contaminated Products/Financial Loss Insurance and Product Guarantee Insurance. fr_dkm_productliability Database The fr_dkm_productliability database is a digital knowledge management tool available to companies or businesses to help them fulfill their legal obligations in regards to product liability cases. This Handbook was conceived for directors or risk managers of manufacturers, distributors, suppliers or retailers, as well as in-house, corporate or specialized attorneys or insurance agents who wish to have an understanding and gain knowledge of product liability law in Germany. In addition to the eBook version, this handbook is available as a printbook.
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Seitenzahl: 101
Veröffentlichungsjahr: 2012
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Handbook of Product Liability / Recall / Insurance in Germany eBook
by
Viktor Foerster / Tibor Foerster / Tim Pahl
Attorneys-at-Law
1st Edition 2012
Publishing House tredition GmbH, Hamburg
Instructions (iPad)
Benutzungshinweise (iPad)
©2012 FOERSTER/FOERSTER/PAHL Publisher: FOERSTER+RUTOW RECHTSANWÄLTE Authors: Viktor Foerster / Tibor Foerster / Tim Pahl Attorneys-at-Law Cover Art: Hans Beisser, Munich and Michael Rybaczewski
This publication, including its parts, is protected by copyright law. Any use without the prior permission of the authors is explicitly forbidden. This shall particularly apply to electronic or other forms of reproduction, translation, distribution and public disclosure.
Bibliographical information of the German National Library:
The German National Library registers this publication in the German National Bibliography; detailed bibliographic data can be found at http://dnb.d-nb.de
ISBN: 978-3-8424-9474-9
Introduction
Product liability and product recalls in particular can pose a threat to the very existence of a company. In order to handle product liability risks a company doing business under the influence of German product liability regulations has to analyze and to evaluate the individual risks to the best effort.
In order to help manage product liability risks, this guide provides an overview of the most important facts, regulations and jurisdiction regarding product liability, product recall and insurance in Germany. Needless to say, due to the variety of options available and the complexity of German and European legislation involved, this guide can by no means substitute legal advice.
Finally, in order to insure proper coverage for complex product liability cases, our fr_dkm_productliability database might be useful for companies or businesses. Please see the last chapter for more information.
Table of content
1. Product Liability
1.1 Sources of Product Liability under German Law
1.2 Basic Legal Requirements for Product Liability Claims
1.3 Duty of Care (§ 823 I BGB)
1.4 Typical Protective Statutes under § 823 II BGB
1.5 Comparison of Claims for Defects under the German Civil Code and CISG
1.6 Typical Defenses of Defendants
1.7 Contributory Negligence
1.8 Burden of Proof
1.9 Limitation Periods for Product Liability Claims
1.10 Joint and Several Liability
1.11 Product Liability and International Private Law
1.12 Product Liability Claims at German Civil Courts
1.12.1 Subject Matter Jurisdiction
1.12.2 Local Jurisdiction
1.12.2.1 EuGVVO
1.12.2.2 § 32 Code of Civil Procedure
1.12.2.3 Choice of the Claimant
1.12.2.4 Choice of the Local Jurisdiction by the Parties
1.12.3 No Class Action for Product Liability Claims in Germany
1.12.4 Cost of Civil Court Procedure Compared to Arbitration (DIS)
1.13 Differences between Legal Sources of Product Liability Claims
2. Product Recall
2.1 Obligations of Producers and Distributors
2.1.1 Sources of Duties
2.1.1.1 Statutes (especially GPSG)
2.1.1.2 Tort (Negligence)
2.1.1.3 Contract
2.1.2 Pre-Market Obligations
2.1.2.1 Prior Approval
2.1.2.2 Safety Standards
2.1.2.3 GPSG
2.1.2.4 LFGB
2.1.2.5 Pharmaceutical/Healthcare Products
2.1.2.6 Automotive
2.1.3 Post-Market Obligations
2.1.3.1 GPSG
2.1.3.2 Food
2.1.3.3 Pharmaceutical/Health Care Products
2.1.3.4 Corrective Actions by Producers
2.2 Enforcement
2.2.1 International Enforcement
2.2.1.1 RAPEX (Rapid Exchange of Information System)
2.2.1.2 RASFF (Rapid Alert System for Food and Feed)
2.2.1.3 ICSMS (Internet-Supported Information and Communication System)
2.2.2 Sector Organizations
2.2.2.1 General Consumer Products
2.2.2.2 Food
2.2.2.3 Pharmaceutical and Healthcare Products
2.2.2.4 Motor Vehicles
2.2.3 Powers of Authorities
2.2.4 Procedure of the Authorities under the GPSG
2.3 Appeals
2.4 Sanctions/Compensation/Criminal Liability
2.4.1 Administrative Offences (Selection)
2.4.2 Criminal Liability
2.4.3 Compensation
3. Insurance
3.1 Overview
3.1.1 Types of Insurances
3.1.2 Recall Alternatives: 1st and 3rd Party Recall
3.1.3 Risk Analysis for Selection of the Appropriate Insurance
3.2 Business Liability Insurance
3.2.1 Insuring Provisions
3.2.2 Exclusion of Liability
3.2.3 Conditions
3.3 Product Liability Insurance
3.3.1 Insuring Provisions
3.3.1.1 Insurance Coverage According to the ProdHB
3.3.1.2 Additional Insurance Coverage According to the ProdHB
3.3.2 Exclusion of Liability
3.3.3 Conditions
3.4 Product Recall Insurance
3.4.1 Insuring Provisions
3.4.1.1 Automotive Provisions
3.4.1.2 Non-Automotive Provisions
3.4.1.3 Main Differences/Similarities between the Insurance Models
3.4.2 Exclusion of Liability
3.4.2.1 Automotive Provisions
3.4.2.2 Non-Automotive Provisions
3.4.3 Additional Conditions to or Deviations from the Provisions of the AHB
3.4.3.1 Non-Disclosure of Existence of Insurance
3.4.3.2 Use of Hotline/Consultant
3.5 Contaminated Products/Financial Loss Insurance
3.5.1 Insuring Provisions
3.5.1.1 Trigger
3.5.1.2 Insurance Coverage
3.5.2 Exclusion of Liability
3.5.3 Conditions
3.6 Product Guarantee Insurance
4. fr_dkm_prodcutliability Database
5. Replacement of the GPSG with the Product Safety Act (ProdSG)
5.1 Background
5.2 Scope of the ProdSG
5.3 Significant aspects of the ProdSG
5.4 Strengthening of the GS Mark
5.5 Intensification of fines
Bibliography
Endnotes
Authors
Rechtsanwalt Viktor Foerster
Rechtsanwalt Tibor Foerster
Rechtsanwalt Tim Pahl
1.Product Liability
1.1Sources of Product Liability under German Law
Under German law, a claimant may assert claims for damages caused by a defective product (e.g. personal injury, property damage) under three different statutory sources. Each such statutory source not only foresees the different preconditions for such claims but also for the consequences of such claims. In principle a claimant may raise claims from three statutory sources cumulatively [1]. The basic differences of the statutory sources are summarized as follows:
1.
Strict Liability
2.
Tort (Negligence)
3.
Warranty (Sales Contract): B2B[2]
Statutory Source
German Product Liability Act (GPLA)[3]
German Civil Code (BGB)
Product Liability
§§ 823 ff BGB
German Civil Code
Defective Product
§§ 434 ff BGB
UN Convention on Contracts for the International Sale of Goods(CISG)
Defective Product [4]
Art. 35 CISG
Mandatory Rules
Yes (§14) [5]
No [6]
No
No
Contract (necessary)
No
No
Yes
Yes
Recovery of Damages [7]
• death/loss of support
Yes
Yes
Yes
No (Art.5 CISG)
• personal injury
Yes
Yes
Yes
No (Art.5 CISG)
• property damages
Yes
Yes
Yes
Yes
• financial loss (only)
No
No § 823 I BGB
Yes § 823 II BGB
Yes
Yes
• pain and suffering
Yes (§8)
Yes (§ 253 II BGB) [8]
Yes (§ 253 II BGB) [9]
No [10]
Monetary Limit of Property Damages
Threshold: EUR 500 [11]
- (§ 11),
CAP: EUR 85 Mio. (§ 10)
No limit
No limit
No limit
Aim of the Claim
Cash payment as compensation for damages arising from the defective product
Possible Claims: (Property Damae)
• privately used product
Yes
Yes
Yes
Yes
• commercially used product
No (§ 1 S. 2)
Yes
Yes
Yes
No Applicability for
• nuclear damages [12]
No
No
No
No
• damages due to pharmaceutical products [13]
No (§ 15)
Yes (§ 15 II GPLA)
Yes (§ 15 II GPLA)
Yes (§15 II GPLA)
Sources of Product Liability under German Law
1.2Basic Legal Requirements for Product Liability Claims
The basic legal requirements for product liability claims between a claimant and a respondent, which have no contractual relationship, are the following:
Requirements
Strict Liability
Tort (Negligence)
GPLA
§ 823 I BGB
(Duty of Care)
§ 823 II BGB
(Protective Statute)
2.1
Applicability (timewise)
§ 16, 19: 01.01.1990
-
-
2.2
Potential Claimant
§§ 7, 8
§§ 844, 845 BGB
• directly injured person
Any person who suffered personal injury or property damage due to a defective product.
Any person who suffered personal injury or property damage due to a culpable (intentional/negligent) violation of a duty of care/violation of a protective statute.
• indirectly injured person
• loss of support/reduction of earning capacity/increased needs
• expenses to restore health
• funeral expenses
• fair compensation in money for non pecuniary loss
2.3
Defective [14] Product [15]
+
+
Duty of Care (see 1.3)
+
Protective Statute (see 1.4)
• product
§ 2: Movable object (e.g. electricity)
• defect
§ 3: If it does not provide that degree of safey which can be justifiably expected.
2.4
Recovery of Damages [16]
• death/loss of support
Yes
Yes
Yes
• personal injury
Yes
Yes
Yes
• property damages
Yes [17], but only damage to an item of property intended for private use/consumption other than the defective product
Yes
Yes
• financial loss (only)
No
No
Yes
• pain and suffering
Yes (§8)
Yes (§ 253 II BGB) [18]
Yes (§ 253 II BGB) [16]
2.5
Monetary Limit of Property Damages
Threshold: EUR 500 [19] (§ 11) Cap: EUR 85 Mio. (§ 10)
No limit
No limit
2.6
Negligence [20]
No (§ 1)
Yes
Yes
2.7
Causation
The liability concepts require causation between the defect of the product/duty of care/protective statute and the resulting damages claimed.
2.8
Burden of Proof
§ 1 IV: Claimant: Burden of proving the defective product/duty of care/protective statute and its causal connection with the resulting damages claimed.
Defendant: Further burden of proof
Defendant has burden of proof: No violation of its duty of care in relation to the defective product.
Defendant has burden of proof: No violation of the protective statute in relation to the defective product.
2.9
Potential Defendants
see § 4
• Producer/Manufacturer
Producer is the person who has manufactured the final product, a basic substance or a component part of the product.
• Quasi-Producer
By attaching his name, trademark or other distinctive mark is regarded as produer.
duty to
• instruct
• monitor
• Importer [21]
Import within the EU.
No liability [22], duty to check the product in relation to risks especially in cases of knowledge of accidents.
• Dealer/Distributor [23]
If the manufacturer of the product cannot be ascertained, every distributor is treated as its producer.
No liability [20], duty to check the product in relation to risks especially in cases of knowledge of accidents.
2.10
Limitation Period (see 1.9)
3 years
3 years
Basic legal Requirements for Product Liability Claims
1.3Duty of Care (§ 823 I BGB)
For any valid claim for product liability under tort (§ 823 I BGB) one of the following basic legal requirements “Duty of Care” must be violated by the defendant.
Duty of Care
3.1
Duty to organize the protection to avoid defects in:
• construction
• production and
• installation
of the product brought into the market.
3.2
Warning for possible hazards/risks [24] especially when personal injury or damage to property is to be expected.
3.3
Duty to monitor and observe the product in the market [25].
3.4
Rules for amending the product (e.g. manual)
3.5
Duty to prevent claims due to a faulty product by
• warning, and if this is not sufficient
• recall of the faulty products.
Duty of care (§ 823 I BGB)
The quality of the specific duty of care varies and depends on the function of the respective defendant (e.g. producer) and the intended use of the product:
• by inexperienced private user or
• by sophisticated professional user or
• if the people in general have a basic knowledge of the risk of the product.
If a product may cause personal injury and/or property damage, there are strict requirements regarding the quality of the warning and the clear definition of the concrete possible result of the misuse (e.g. “death”). The producer of the final product is primarily responsible for the warning/ instructions to avoid personal injury and/or property damages. The typical content of a duty of care can be illustrated by the following examples.
Typical Content of Duties of Care
1.
(Unavoidable) side effects while using the product in compliance with the warnings and instructions given.
2.
Risk of hazards of foreseeable misuse within the general intended use of the product (clear intentional or gross negligent misuse not be covered). [26]
3.
Obligation to disclose limits of use of the product if not within the general knowledge and experience of the respective group of users.
4.
Instructions/warnings (including concrete description of results from potential hazards/risks) related to proper
- storage
- amendment
- without effect [27]
- handling
- disposal
- maintenance/repair
of the produc, if hazards/risks are connected with such activities and may affect personal injury and/or property damages.
5.
The language of the instructions/warnings must be clear, sufficient to its specific content, conspicuous and comprehensive to the potential user group; the information must be structured in relation to its importance (priorities).
6.
Instructions/warnings must be emphasized in the document (e.g. color, bold printing; symbols). Warnings must be put on the product and its packaging. [28]
Typical Content of Duties to Care
1.4Typical Protective Statutes under § 823 II BGB
§ 823 II BGB
