Permissibility of an instruction manual on CD-ROM

Potsdam Regional Court, judgement of 26 June 2014 – Case: 2 O 188/13.
The legal requirements with respect to the content and form of instruction manuals and operating instructions are a concern for the market players in almost all industries. A breach of these requirements can also bring various different areas of law into play: there is not only the threat of product safety and product liability law implications, but competition law consequences may also be an issue.

The Potsdam Regional Court has now ruled in a competition law dispute (published in MMR 2015, 335) that the provision of operating instructions in electronic form satisfies the requirements of the German Product Safety Act. The case specifically concerned a digital camera “imported” from Poland, which the German retailer distributed with only German operating instructions on CD-ROM. The Court held that no obligation could be derived from the relevant provisions of the German Product Safety Act according to which the product had to be accompanied by operating instructions in paper form. Although the relevant regulation contained in Section 3 (4) of the German Product Safety Act required operating instructions in German, it did not state any specific requirements relating to their form. Directive 2001/95/EC (“General Product Safety Directive”), whose requirements have essentially been implemented with the German Product Safety Act, does not result in any different interpretation either. According to the Court, operating instructions in German on a durable medium in fact meet the current safety requirements which a consumer can reasonably expect today. There is therefore neither an information obligation pursuant to Section 5a (2) of the German Act Against Unfair Competition nor pursuant to Section 5a (4) of the German Act Against Unfair Competition to provide operating instructions in German printed on paper.

Although the judgement ultimately confirms the prevailing opinion in the literature with respect to the requirements pursuant to Section 3 (4) of the German Product Safety Act, it must be noted that different requirements may exist for products which have been harmonized at European level (for example under the EC Machinery Directive). Relevant safety information should also generally be provided to the consumer in paper form since this is already required on the basis of product liability regulations.