Twenty-fifth anniversary of the German Product Liability Act

15 December 2014 is the twenty-fifth anniversary of the enactment of the German Product Liability Act, which is based on the EC Product Liability Directive 85/374/EEC. The Act, which today has a central place in Germany’s liability regime, but also in the forensic activities of lawyers and courts, was not initially very well received. This was above all due to the fact the case law of the Sixth Civil Senate of the German Federal Court of Justice had for many decades firmly established the tort case law on Section 823 of the German Civil Code which originated from the Supreme Court of the German Reich. Unlike in some other EEC Member States at that time, which did not recognise this accountability of manufacturers outside the contractual supply chain, the Act was therefore reluctantly accepted in Germany because the difference between the strict liability in tort of the German Product Liability Act and the various relaxations of the burden of proof with respect Sec. 823 of the German Civil Code was not immediately evident in practice. Above all, however, the successful acceptance and application of the German Product Liability Act was drastically hindered prior to 2002 by the fact that damages for pain and suffering could not be obtained via the German Product Liability Act; the damaged party had to rely on argumentation based on Sec. 823 of the German Civil Code alone for this part of any claim. This was first changed with major reform of the German law of obligations in 2002 and it is no surprise that since then the number of proceedings in which the German Product Liability Act has delivered the elements of an offence which decides the case has constantly increased.

The German Product Liability Act recently attracted attention again because the German Federal Court of Justice based damage caused by an electric power surge on the German Product Liability Act (cf. Kermel/Katschthaler/Wende, PHi 2014, 70). It was able to do this because Sec. 2 of the German Product Liability Act expressly defines electricity as a product in the legal sense – an argument which has, however, not yet been attempted for tort law duties to implement safety precautions in relation to Sec. 823 of the German Civil Code. Whether, on the other hand, the exclusion in Sec. 15(1) of the German Product Liability Act in favour of the medicinal product liability in accordance with the German Medicinal Products Act is permissible under European law, is currently being clarified in preliminary ruling proceedings before the ECJ (C-301/13).

That the mentioned reform of the German law of obligations in 2002 was the last intervention in the text of the German Product Liability Act shows that – also at European law level – the necessary for further fine-tuning is not seen in terms of legislative policy. The Act is seen as being stable and consistent. There is much more activity, on the other hand, with respect to public-law product safety regulations, most recently with the (EU) Regulation No. 765/2008/EC (Market Surveillance Regulation) and the New Alignment Package in the area of CE Directives which is successively coming up for implementation.