General Product Safety Regulation (EU) 2023/988

The General Product Safety Regulation (EU) 2023/988 (the “GPSR”) has applied in Germany (as in all other EU member states) since 13 December 2024. The GPSR constitutes a “general” product safety law that regulates safety requirements for products as well as obligations of economic operators (with regards to potential safety risks) and market surveillance.

The GPSR is designed to protect consumers from unsafe products and applies to products which are:

• intended for consumers; or
• likely to be used by consumers under reasonably foreseeable conditions.

In light of the purpose of consumer protection this condition for applicability should be interpreted broadly. The GPSR also covers so-called migration products, which are designed exclusively for professional use but have subsequently made their way into the consumer market. It also covers products that are supplied or made available to consumers in the context of the provision of services.

The GPSR contains particular exceptions for medicinal products, food, feed, living plants and animals, some types of aircraft, antiques and equipment on which consumers ride or travel where that equipment is directly operated by a service provider and not by the consumers themselves (ie, public buses, trains, airplanes). The reason for the latter is that the service will be the main focus when transporting people and any risks associated with the means of transport were minimised by having it operated by professionals.

Where products are subject to specific safety requirements imposed by EU law, the GPSR only applies generally to those aspects and risks which are not covered by the provisions of the specific EU legislation.

Product Safety Act

The German Product Safety Act (Produktsicherheitsgesetz or the “ProdSG”) continues to operate alongside the GPSR. The two laws overlap to a large extent. The ProdSG was therefore supposed to be fundamentally revised and transformed into an implementing law for the GPSR before the GPSR came into force. However, the legislative process could not be completed before the end of the previous parliamentary term in December 2024. It remains to be seen when and in what form the newly formed German Federal Parliament will resume work on the legislation.

Until then the GPSR as EU law takes precedence over the German ProdSG in the event of conflicting provisions.

Specific Safety Requirements

In addition to the general provisions of the GPSR and the ProdSG, a number of specific laws apply in Germany for certain products, which are based on the respective EU law. These include the:

• Food and Feed Code (Lebensmittel-, Bedarfsgegenstände- und Futtermittelgesetzbuch or the “LFBG”);
• Medical Devices Law (Gesetz über Medizinprodukte or the “MPG”);
• Electromagnetic Compatibility Act (Elektromagnetische-Verträglichkeit-Gesetz or the “EMVG”);
• Regulation (EU) 2018/858 on the approval and market surveillance of motor vehicles and their trailers;
• Machinery Regulation;
• Regulation on the safety of toys;
• Regulation on the provision of personal protective equipment on the market;
• Regulation on the provision of recreational craft and recreational craft traffic;
• Aerosol Dispensers Regulation;
• Pressure Equipment Regulation; and
• Regulation (EC) No 1907/2006 on chemical substances (REACH).

Market Surveillance

The tasks and powers of the market surveillance authorities are governed by the European Market Surveillance Regulation (EU) 2019/1020. For products that are not covered by this Regulation, the German Market Surveillance Act (Marktüberwachungsgesetz or the “MÜG”) applies.

At the Federal level, the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales or the “BMAS”) is generally responsible for product safety and the respective legislation. However, for most products, market surveillance is carried out at the level of the Federal states by the administrative districts (Regierungsbezirke) or trade supervisory authorities (Gewerbeaufsichtsämter). This means that there is no central market surveillance authority for most products in Germany. Instead, there are several authorities, which are each responsible for their own area.

In addition, there are national level authorities for specific product groups. These include the:

• Federal Office of Consumer Protection and Food Safety (Bundesamt für Verbraucherschutz und Lebensmittelsicherheit or the “BVL”) which co-ordinates the activities of the authorities responsible for food monitoring in the federal states in Germany. It is responsible for products such as cosmetics, food contact materials, toys, clothing and jewellery, which are regulated by the LFBG;
• Federal Motor Transport Authority (Kraftfahrt-Bundesamt or the “KBA”) is responsible for regulatory matters regarding vehicles;
• Federal Network Agency (Bundesnetzagentur or the “BNetzA”) is responsible for the control of products related to radio equipment and electromagnetic compatibility;
• Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte or the “BfArM”) is responsible for the central collection, analysis and evaluation of risks arising from the use or application of medical devices; and
• German Institute for Building Technology (Deutsches Institut für Bautechnik or the “DIBt”) is responsible for the compliance of construction products with the relevant requirements.

The new GPSR, which has applied since 13 December 2024, contains very detailed and far-reaching requirements for corrective actions with regards to products used by consumers.

According to Article 9(8) of the GPSR, a manufacturer will take corrective measures and inform consumers of the corrective measures taken, if it considers or has reason to believe that a product which it has placed on the market is a dangerous product within the meaning of the GPSR. The corrective measures to be taken include a 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 instructions 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 consumers 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 template for a recall notice in the Commission Implementing Regulation (EU) 2024/1435.

Article 37 of the GPSR states that the responsible 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 limitation periods.

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 purpose, 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 surveillance authorities simultaneously, especially in different countries.

The obligation to “immediately” inform the market 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 measures already taken, a certain amount of time can be allowed for rough planning of the corrective measures to be taken to take place. However, these corrective measures must be initiated and implemented as soon as possible to ensure effective consumer protection.

Notification of Accidents

In addition, Article 20 of the GPSR introduces a new obligation for manufacturers to “immediately” notify the competent authorities of accidents related to the safety of products that resulted in an individual’s death or in serious effects to an individual’s health and safety. This notification also has to be made through the Safety Business Gateway. Importers, distributors and providers of online marketplaces are accordingly obliged to report relevant accidents to the manufacturer.

The GPSR does not contain provisions on penalties themselves. However, it does authorise member states to enact penal provisions. While the GPSR has not yet been implemented into German national law, the existing German ProdSG continues to apply.

Intentional or negligent infringements of certain provisions of the ProdSG or directly applicable EU law can be considered administrative violations. In most cases, a fine of up to EUR10,000 can be imposed. However, in specific and more severe cases it can be up to EUR100,000. In addition, the profit made from the offence can be confiscated as part of the fine. This often represents a much larger proportion of the total amount than the actual fine.

The persistent repetition of certain intentional offences or endangering the life, health or the property of significant value of another person can be considered a criminal offence and lead to a prison sentence of up to one year or a criminal fine being imposed.

However, the ProdSG is expected to be revised in the near future in light of the GPSR coming into force.

Claimants bringing product liability cases before German courts seek damages and compensation for pain and suffering caused by a defective product.

Product liability cases will be based on the alleged infringement of the Product Liability Act (Produkthaftungsgesetz or the “ProdHaftG”) or tort law.

ProdHaftG

According to Section 2 of the ProdHaftG, the term “product” includes any movable item (even if it is part of another movable or immovable item) as well as electricity. The question of whether specific types of software can be considered a “product” according to Section 2 of the ProdHaftG has been a controversial one for years. It is likely that this dispute will be resolved when the European Product Liability Directive (EU) 2024/2853, which classifies software as a “product”, is implemented into national German law by 9 December 2026.

Liability under the ProdHaftG is limited to the defective product causing a person’s death, bodily harm, damage to health or damage to property.

In the event of personal injury liability will be limited to a maximum amount of EUR85 million. In the event of property damage a claim based on the ProdHaftG will only be successful if the damage is inflicted to another item than the defective product itself and if that other item was intended for private use or consumption and was mainly used for this purpose by the injured party.

In addition, the injured party must pay damages of up to EUR500 themselves. However, the new Product Liability Directive will cause the previous self-liability for property damage and the maximum liability of EUR85 million to be eliminated in future.

Injured parties will claim that they have been harmed as a result of faults in product design, manufacturing or instruction and the burden of proof will be on them to prove their assertions. The following economic operators may be considered as potential defendants: the product manufacturer, component manufacturers, quasi-manufacturers whose name or brand is shown on the “product”, importers and suppliers.

Tort Law

Tort law is another basis for product liability claims, specifically under Section 823 of the German Civil Code (Bürgerliches Gesetzbuch or the BGB, so-called producer liability).

Producer liability originates from the general duty to ensure safety. This encompasses obligations before, and especially after, a “product” is placed on the market. It means that a manufacturer who is responsible for creating a source of danger by placing a defective product on the market must, within the limits of what is technically possible and economically reasonable, ensure that product users and other third parties are not harmed in any legally protected way under Section 823 of the BGB (ie, life, body and health, property).

From the moment a “product” is released on the market, the manufacturer has to carry out active product monitoring. If product hazards have been observed, the manufacturer must warn about them at the very least and can, where there are threats to high-ranking legal interests be obliged to initiate a recall. The manufacturer may also be required to take interim measures during the processing of a potentially time-consuming recall.

The claimant has to prove the existence of a product defect, the damage caused and the causal link between the two. However, prima facie evidence (so-called Anscheinsbeweis) might facilitate the burden of proof for the injured party. It can be assumed when a typical sequence of events has occurred that there has been a breach of duty by the manufacturer (see 2.9 Burden of Proof in Product Liability Cases).

Individuals or legal entities whose legal interests have been harmed by a defective product are entitled to make a product liability claim.

However, German civil procedural law also provides for collective redress (see 2.16 Existence of Class Actions, Representative Proceedings or Co-ordinated Proceedings in Product Liability Claims). Through a class action lawsuit (Verbandsklage) under the Consumer Rights Enforcement Act (Verbraucherrechtedurchsetzungsgesetz or the “VDuG”), consumer associations can establish legal relationships or actual or legal requirements for claims for a large number of consumers against an entrepreneur.

A class action lawsuit can take the form of a redress action (Abhilfeklage) or a model declaratory action (Musterfeststellungsklage). The model declaratory action that has attracted the most attention to date was a product liability case brought by the Federation of German Consumer Organisations (the “VZBV”) against the car manufacturer VW over the diesel emissions issue. This case ended in an out-of-court settlement.

Claims under the ProdHaftG must be brought within three years of the date on which the person entitled to compensation became aware, or should have become aware, of the damage, defect and identity of the liable party, in line with Section 12(1) of the ProdHaftG. According to Section 12(1) of the ProdHaftG, this limitation period may be extended if negotiations concerning the amount of compensation to be paid are ongoing between the liable party and the party entitled to compensation, until one of the parties refuses to continue the negotiations.

Claims under the ProdHaftG expire ten years after the date on which the manufacturer placed the “product” that caused the damage on the market according to Section 13 of the ProdHaftG. However, this does not apply if a legal dispute or debt collection procedure is pending regarding the claim. The new Product Liability Directive, which has to be implemented into national law by 9 December 2026, provides for an extended expiry period of 25 years for late effects of bodily injury.

Tort law-based claims are also subject to a three-year statute of limitations (the so-called regular limitation period for civil law claims). This limitation period begins at the end of the year in which the claimant became aware or ought to have become aware of the damage, the defect and the identity of the possible defendant.

The limitation period for consumer claims against businesses based on product liability is also suspended if consumers register their claims with the class action register following the filing of a model declaratory action or an action for relief under the VDuG (see 2.2 Standing to Bring Product Liability Claims) provided the claims are based on the same facts or are the subject of the action.

When dealing with product liability cases, the German courts establish their international jurisdiction first. They do so by taking the Brussels-Ia-Regulation (EU) Nr. 1215/2012 and the German Code of Civil Procedure (Zivilprozessordnung or the “ZPO”) into account. In line with the civil procedural principle of actor sequitur forum rei (the claimant must follow the defendant’s place of jurisdiction), a product liability case can be brought before a German court if the defendant is based in Germany.

According to Article 7(2) of the Brussels-Ia-Regulation, tort or quasi-tort claims based on the place where the harmful event occurred or may occur can also be brought before civil courts in Germany. This refers to either the place where the harmful consequences were felt (the place of damage) or the place where the act or omission that caused the damage occurred (the place of the event giving rise to the damage).

In product liability cases, the place of performance is the location in the company where the “product” is manufactured. Meanwhile, the place of success is where the triggering event causes damage when the “product” is used as intended. This ensures a close connection between the dispute and the chosen court.

In practice, there are no compulsory pre-action procedures that must be completed before legal proceedings can be initiated. Although Section 15a(1) number 1 of the Introductory Act to the Code of Civil Procedure gives federal states the option to require a pre-trial dispute resolution procedure for claims of less than EUR750, this provision is meaningless in practice as the mandatory pre-trial dispute resolution has been abolished in all federal states for these cases.

Product liability claims and lawsuits are regarded as typical cases and are processed by the courts in the same way as any other civil law claims.

The claimant can decide whether or not to initiate formal proceedings immediately. Some claimants may choose to conduct a debt recovery procedure in the hope of obtaining an enforcement order more quickly than through regular civil proceedings.

Neither German product liability law nor civil procedural law contain specific provisions regarding the preservation of evidence.

However, if a “product” was placed on the market on or after 13 December 2024, compliance with the obligation to preserve documentation on product safety and risk-related topics under the GPSR must be ensured. According to Articles 15(2) and 15(4) of the GPSR, the responsible economic operator must be able to make a full description of the risks associated with the “product”, the related complaints and any known accidents available to the market surveillance authorities as well as a description of any corrective measures taken in relation to the risk for a period of ten years.

In product liability cases, a defendant’s chances of success in legal proceedings may depend heavily on how diligently they preserve information regarding the safety of a specific “product”.

Because the Product Liability Directive has to be implemented into national law by 9 December 2026, the importance of preserving evidence in product liability cases will increase in the future, as the manufacturer of a “product” may be required to disclose evidence in line with Article 9 of the Product Liability Directive. The content and scope of product safety documentation will therefore be essential in determining the outcome of a product liability case.

It is therefore in a product manufacturer’s best interests to diligently preserve evidence proving that a “product” is defect-free.

German law currently lacks specific regulations concerning the disclosure of documents in product liability cases.

However, this will change drastically once the new EU Product Liability Directive is transposed into national German law. As part of its implementation, German product liability law will have to introduce a new right to disclosure. To obtain disclosure, the claimant will only need to make the damages claim appear plausible.

The courts may order disclosure if it is considered necessary and proportionate. However, they must also consider the protection of confidential information and business secrets.

This new requirement poses significant risks for manufacturers as the courts have broad discretion in determining the extent of disclosure due to vague legal concepts like necessity and proportionality.

In product liability cases, expert evidence often plays a crucial role, given the technical complexity of the “products” in question. German civil procedural law does not contain a specific set of rules for expert evidence in product liability cases. The same rules which apply to civil procedure cases in general also apply here.

In Germany, the court itself appoints the experts (not ex officio but following a request from a party in their submission). Unlike in other jurisdictions, the parties are not able to present their own expert witnesses as primary evidence. Opinions rendered by party-appointed experts are generally considered part of the party’s submissions and, in general, do not carry the same evidential weight as those of a court-appointed expert. During the selection process, the court often consults with the parties, especially to avoid an expert being rejected because of concerns about bias.

After the expert report has been written, the parties will have the opportunity to comment on it and challenge the findings through oral arguments. During the proceedings, the expert may be called to testify and clarify the findings. While the court is not bound by the expert’s opinion, it will assess all available evidence independently, including the expert’s report.

In general, when a claim is brought under the ProdHaftG or general tort law, the burden of proof for proving a claim is on the claimant.

This is referred to as “full proof” (Vollbeweis). This means the court must be fully convinced of the truth of the fact proven beyond reasonable doubt.

Under the ProdHaftG and general tort law, the claimant must first prove that the “product” was defective and then that this defect caused the alleged injury or damage.

Once this has been established, the burden of proof shifts to the defendant.

In terms of claims under the ProdHaftG, the defendant may invoke one of the liability exclusions specified in Section 1(2) of the ProdHaftG, eg, that the defect did not exist when the “product” was put into circulation or that the state of scientific and technical knowledge at the time did not allow the defect to be discovered (see 2.12 Defences to Product Liability Claims).

Under general tort law, it is presumed that the defect occurred as a result of the manufacturer’s actions. The manufacturer can defend themselves by showing that they met all relevant duties of care and that the defect was not their fault. The reversal of the burden of proof aims to assist claimants, who generally face evidential challenges when the cause of the defect lies within the manufacturer’s remit.

In future, claimants will find it easier to access the manufacturer’s internal product safety documentation through the new disclosure of evidence rules of the Product Liability Directive (see 2.7 Rules for Disclosure of Documents in Product Liability Cases) and they will be able to use the information obtained to their advantage. Disclosure under the future national implementation of the Product Liability Directive cannot be avoided without significant procedural risks. This is because failure to disclose evidence leads to a legal presumption that the “product” is defective.

The Product Liability Directive also introduces further presumptions regarding product defects and causation. Consequently, the traditional rule that the claimant must prove their case is increasingly being undermined in product liability matters. This effectively means the burden of proof is shifting to the defendant. Unresolved factual uncertainties are likely to disadvantage defendants more often in the future.

There are no specialist product liability courts in Germany. Cases are instead handled as standard civil law matters under the ZPO.

District Courts (Amtsgerichte) have jurisdiction over cases where the amount in dispute is up to EUR5,000. For disputes exceeding this amount, Regional Courts (Landgerichte) are the competent courts in the first instance. There were plans to increase the threshold for Amtsgerichte from EUR5,000 to EUR8,000 but this increase has not been enacted into law yet.

An interesting new feature of the German civil court system, particularly with regard to cross-border disputes, came into force on 1 April 2025 through the Judicial Location Strengthening Act (Justizstandort-Stärkungsgesetz). This allows federal states to establish special commercial courts as senates at Higher Regional Courts (Oberlandesgerichte). Higher Regional Courts can hear proceedings in the first instance if the parties agree to bring a commercial dispute before a commercial court and the value of the claim exceeds EUR500,000.

For disputes below EUR500,000, special commercial chambers can be established at specific Landgerichte, with appeals going to the commercial courts at the Higher Regional Courts. One advantage of bringing a claim before a commercial court is that the proceedings can be conducted entirely in English.

Whether these procedural options are available depends on whether and to what extent federal states make use of the option of establishing commercial courts. The commercial courts currently established in Germany mostly specialise in handling disputes in specific legal areas, such as corporate law and often do not include product liability cases. It remains to be seen whether more commercial courts open to all civil disputes between commercial parties will be established in the future, thereby encompassing product liability disputes.

Judges will decide product liability cases. No juries are used in the courts in Germany. In terms of claims under the ProdHaftG, liability is limited to a maximum of EUR85 million in personal injury cases involving a “product” or similar “products” with the same defect. However, under the new Product Liability Directive, this maximum liability limit will no longer apply in the future (see 2.1 Product Liability Causes of Action and Sources of Law).

There are also no specific rules with regard to appeal mechanisms and timeframes for product liability cases. As a result, the general rules for appeals apply.

An appeal may be lodged against final judgments issued by courts of first instance (Sections 511 et seq of the ZPO within one month of the fully detailed judgment being served and no later than five months after the judgment is pronounced. However, the appeal is only permitted if the amount in dispute exceeds EUR600 or if the court of first instance expressly allows the appeal in its judgment. The claimant must then submit a statement of grounds of appeal within one month. This deadline can be extended by one month without the respondent’s approval.

Following the decision of the court of the second instance, the only recourse left is an appeal to the German Federal Court of Justice (the “BGH”). The BGH will only hear the case if the court of second instance grants permission of appeal or the BGH does so itself. Both courts will only do so if the legal matter is of fundamental significance or a decision by the BGH is necessary for the further development of the law or to ensure uniform adjudication.

The BGH will only make a judgment based on points of law and challenges based on factual determinations are not permitted.

The ProdHaftG explicitly specifies several instances in which the producer is excluded from liability. This is where the:

• producer did not place the “product” on the market;
• defect which caused the damage did not exist at the time the “product” was placed on the market;
• “product” was not produced for sale or distribution for economic purposes, nor manufactured or distributed in the course of the producer’s professional activity;
• defect is due to the “product” complying with mandatory regulations at the time it was placed on the market; or
• it was not possible to discover the defect at the time of placing the “product” on the market according to the level of scientific and technical knowledge.

The defendant may also dispute the conditions necessary for establishing liability. They may specifically contest that they are in fact not the manufacturer of the “product”, that there was no product defect when the “product” was placed on the market, that the claimant did not sustain any protected damage or that the damage was not causally attributable to the product defect.

In principle, the same defence rights exist under tort law. Unlike under the ProdHaftG, a manufacturer can also be held liable under tort law if they become aware of a product defect after placing the “product” on the market and does not take corrective measures in good time. In this case, the manufacturer can successfully defend itself if it informed the customer of corrective measures to be taken but the customer did not comply with the request and suffered damage as a result.

Finally, if the relevant limitation period has expired, the manufacturer can invoke the defence of the statute of limitations (see 2.3 Time Limits for Product Liability Claims).

Whether a “product” is considered defective under the ProdHaftG depends on the legitimate safety expectations of product users. In this context, regulatory requirements set a minimum standard for product design that must generally be observed by manufacturers, insofar as safety-related features are concerned. If regulatory requirements are not met, a product defect will be assumed.

On the other hand, compliance with regulatory requirements does not necessarily mean that the “product” is defect-free. While there is an indicative effect, it is possible that safety expectations of product users exceed the recognised technical standards, therefore constituting a defect. According to Section 1(2) number 4 of the ProdHaftG, a manufacturer is only exempt from liability if it can prove that the product defect is specifically due to the “product” having complied with mandatory legal provisions at the time it was placed on the market.

The new Product Liability Directive (EU) 2024/2853 expressly stipulates that safety requirements under EU or national law must be considered when assessing the defectiveness of a “product”. It remains to be seen how the German legislature will implement this into national law.

The product liability law does not contain any specific cost-bearing rules meaning that the general rules of the ZPO apply. According to these rules, the unsuccessful party in a lawsuit must pay the court costs, including costs of taking evidence such as costs for a court appointed expert witness and the opposing party’s costs, provided they were necessary for the appropriate pursuit or defence of the lawsuit. In the event of a partial success or defeat, the costs are apportioned.

An exception to this is the costs of means of challenge or defence which were not successful. These costs may be imposed on the party that brought it even if it has prevailed on the merits of the case.

The successful party is therefore entitled to reimbursement of costs from the losing party. However, this is limited to the statutory fees, which depend on the amount in dispute. If the successful party has agreed a higher fee with its lawyer (for example, an hourly rate) it must cover the difference between this and the statutory costs itself.

Third-party litigation funding is generally permitted under German law. Litigation funders are independent service providers who assume the cost risk of a lawsuit in return for a share of the outcome. Litigation funders have become increasingly prominent in recent years, particularly in connection with mass claims brought by consumers or follow-on antitrust claims.

For lawyers, agreements in which the amount of remuneration depends on the success of the lawyer’s work or in which the lawyer receives a percentage of the amount won as a fee (contingency fees) are not generally permitted. There are only very limited exceptions to this rule, eg, for small claims of no more than EUR2.000. It is also not permitted to agree on fees that are lower than the statutory fees.

Another option for financing a lawsuit is to take out legal expenses insurance. Legal aid is only granted in certain cases if the applicant is unable to pay the legal costs due to their personal and economic circumstances and if the proposed legal action has a reasonable chance of success.

The VDuG came into force in Germany on 13 October 2023. It implements Directive (EU) 2020/1828 on representative actions for the protection of consumers’ collective interests. The VDuG introduced a new type of representative action for civil proceedings in Germany: the redress action (Abhilfeklage). Qualified consumer associations can use this action to assert similar claims on behalf of consumers. To do so, the consumer association must credibly demonstrate that the claims of at least 50 consumers are affected.

In the redress action, the payment of a collective total amount is claimed. If the court deems the claim to be valid, it will issue a basic redress judgment. This is followed by a phase in which the parties are encouraged to reach a settlement agreement. If a settlement fails, the court will order an implementation procedure, in which the judgment will be implemented with the help of a trustee and payments will be made to consumers who joined the lawsuit.

There is also a model declaratory action (Musterfeststellungsklage) option in Germany. It was introduced in 2018 due to the large number of consumers affected by the diesel emissions issue and integrated into the VDuG in 2023. The purpose of the model declaratory action is to determine whether the factual or legal prerequisites for claims exist or not. A settlement can therefore be reached or the consumers must individually enforce the payment of compensation of a certain amount.

Finally, the so-called assignment model is used in Germany to deal with a large number of claimants. In this model, claimants assign their claims to a litigation vehicle, which then brings the claims collectively.

Over the last ten years, the issue of diesel emissions has occupied practically every court in Germany. Vehicle owners have brought tort claims against various manufacturers relating to the emissions of their cars. A series of judgments on various issues have now been issued by the BGH. In cases where the courts concluded that manufacturers had installed a “defeat device” in vehicles that differentiated between tests and road operations, the manufacturers were ordered to reverse the respective purchase contracts due to intentional immoral damage.

On 26 June 2023, the BGH (case numbers VIa ZR 335/21, VIa ZR 533/21 and VIa ZR 1031/22) ruled that the negligent use of illegal “defeat devices” could also entitle vehicle owners to compensation. This would be assessed at a lump sum of 5% to 15% of the purchase price. This method of calculating damages was previously unknown in German tort law.

In recent years, several claims for damages have also been made against manufacturers of COVID-19 pandemic vaccines due to alleged vaccine-related health issues. These lawsuits have so far been unsuccessful as claimants have to prove that their health issues are actually caused by the vaccine and not other factors. Secondly, they have to prove that the manufacturer provided incorrect information at the time of vaccination. Alternatively, they have to challenge the decision to authorise the vaccine, ie, demonstrate that the risk to the general public from the vaccination outweighed the benefits. This is also very difficult, which is why the chances of the lawsuits succeeding is generally considered very low.

In a recent ruling on 19 December 2024, the ECJ (case number C-157/23) provided further clarification on the definition of “manufacturer” in the context of product liability, significantly increasing the liability risk for distribution companies. The case in question involved a claim against the Italian sales company Ford Italia relating to a product liability defect in a vehicle. The vehicle’s manufacturer was the German company Ford Werke AG. According to the ECJ’s decision, even a partial coincidence in name between a distributor and the manufacturer is sufficient to establish the distributor’s liability as a quasi-manufacturer.

Expanding consumer protections have been seen in Germany and the EU for several years now. This is not only reflected in new legislation but in case law as well. Additionally, product requirements are becoming increasingly stringent, making it easier for consumers to assert claims against manufacturers.

Legislation is also increasingly being adapted to accommodate the growing digitalisation of “products” and the increasing use of artificial intelligence (AI). For example, software is now explicitly recognised as a “product”. In addition, cybersecurity features and evolving, learning functions must be taken into account when assessing the safety or defectiveness of “products”.

These trends are reflected in recent legislation such as the:

• GPSR;
• Product Liability Directive (EU) 2024/2853;
• VDuG;
• Accessibility Improvement Act (Barrierefreiheitsstärkungsgesetz or the “BFSG”); and
• AI Regulation (EU) 2024/1689.

Manufacturers are also increasingly required to take interim measures in the event of a product risk being discovered. This applies for the time between the discovery of a defect and the start of a recall. During this period, manufacturers are also required to eliminate risks for product users as much as possible.

Since the diesel issue emerged, there has been a noticeable increase in allegations of fraud by investigating authorities related to claims about product characteristics. In the context of product liability under criminal law, explicit statements about a “product” that later prove to be false or inaccurate as well as the failure to disclose important product features to customers can both be significant in terms of criminal liability for fraud.

Due to changes in EU-level legislation, amendments to national legislation are expected in the near future in relation to the two main German Acts that regulate product safety and product liability (the ProdSG and the ProdHaftG).

The GPSR is directly applicable in EU member states. However, the ProdSG is still currently in force and its provisions largely overlap with those of the GPSR. It is likely that the ProdSG will be amended to serve as an implementing law for the GPSR, particularly in terms of sanctions. A corresponding legislative proposal was not finalised in the last legislative period and it remains to be seen when the new government will take up this legislative proposal again.

The Product Liability Directive (EU) 2024/2853 is not directly applicable in EU member states and must be implemented into national law. The deadline for implementation is 9 December 2026. It remains to be seen how the German legislature will specifically implement the new obligation to disclose evidence, which is currently unknown in German law.