Liability of “quasi-producers” pursuant to Section 4 of the German Product Liability Act: specification of address in information material

Pursuant to the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG), which provides for strict liability for safety-relevant product defects, not only the actual manufacturer is obligated to pay any damages, but also the “quasi-producer”. According to the definition in sentence 2 of Sec. 4(1) of the German Product Liability Act, “quasi-producers” are “any persons who present themselves as producers by affixing their name, trade mark or other distinguishing feature”.

Companies are often confronted in this respect with the question of whether every mention of its own name and its own address in connection with the product leads to this categorisation as “quasi-producer”. The Koblenz Higher Regional Court addressed the criteria which are to be applied here in more detail in its decision of 24 July 2012 (Case No. 5 U 299/12, VersR (insurance law journal) 2013, p. 1142).

This case concerned (purely psychological) damage caused by a defibrillator defect (in this case a defective sensor). The sensors were distributed in Germany by the defendant, but were produced by its parent company in the USA and imported to the European Economic Area by a third company.

A liability of the defendant therefore only came into consideration in accordance with sentence 2 of Section 4(1) of the German Product Liability Act. In order to substantiate the categorisation of the defendant as a “quasi-producer” by pleading that the defendant had been specified with its address in two documents, the patient identification card and the information brochure, which were provided to patients when the defibrillators were implanted.

Decision of the Koblenz Higher Regional Court

The Koblenz Higher Regional Court held that the defendant was not be categorised as a “quasi-producer” on the basis of this information for the following reasons:

The court on the one hand refers to the case law of the German Federal Court of Justice, which has clearly defined the wording of the cited act to the effect that the name (or another distinguishing feature) has to be affixed to the product (BGH (German Federal Court of Justice), NJW (legal journal) 2005, 2695). The court advised that although this may also include the product packaging and the product description, it does not, however, include other accompanying items.

On the other hand, the Koblenz Higher Regional Court scrutinized the presentation of the name and address of the defendant in the specified documents. It came to the conclusion in this respect that although the name and address of the defendant were clearly specified, it was clear from the documents that this was only intended to be a service contact address and not the indication of the producer. According to the findings of the court, another company was clearly specified as the producer in the patient identification card. The court also noted that the specification of the defendant’s name was clearly distinguished from this specification of the producer in terms of description and font. Various contacts, which included the defendant, were listed in the information brochure for various distribution countries. In the assessment of the court, this does not give the impression that all of these contacts are producers, but in fact the picture is that of standardised production and Europe-wide distribution, for which regionally responsible contacts are in each case specified. This, according to the court, does not, however, make the individual contacts “quasi-producers”.