Barrierefreiheitsstärkungsgesetz (BFSG), market surveillance, corrective orders, consumer and association applications, conciliation and information duties

Section 2 provides that a market surveillance authority is any authority responsible for market surveillance under the law of a Land. Section 20(1) requires the Länder to ensure that their market surveillance authorities can perform their tasks properly and to equip them with the necessary resources.

The Marktüberwachungsstelle der Länder für die Barrierefreiheit von Produkten und Dienstleistungen (MLBF), a public-law institution, supervises compliance with the Act as the joint monitoring body of all 16 Länder. The MLBF lists the imposition of fines under section 37 among the measures it takes against infringements. Section 22(1) requires economic operators to cooperate fully with the market surveillance authority in its check of a product.

Section 22(2) requires the authority, where a product does not meet the requirements, to call on the economic operator without delay to take suitable measures within a reasonable period, and the hearing period may not be less than ten days. Section 22(4) lets the authority, where the operator takes no suitable measures within that period, restrict or prohibit making the product available on the German market, or have it withdrawn or recalled.

Section 23(2) treats as formal non-conformity a missing or incorrect CE marking or EU declaration of conformity, unavailable or incomplete technical documentation, missing or incorrect manufacturer or importer details, and any other unmet formal obligation under sections 6, 7, 9 or 10. Section 23(3) lets the authority, where the operator does not correct a formal non-conformity in the period set, restrict or prohibit making the product available until conformity is established.

Section 28(2) requires the authority to check services on a sample basis without a specific occasion, and for websites and mobile applications to apply the requirements of Annex 1, item 1. Section 29(2) requires the authority, where a provider takes no suitable corrective measures within the period set, to call on it again under threat of prohibiting the offer or provision of the service.

Section 29(3) lets the authority, where the provider takes no suitable corrective measures within the period set under section 29(2), take the measures needed, in particular order the provider to stop offering or providing the service within a period it sets. Section 30(2) treats as formal non-conformity of a service that the information under Annex 3 was not prepared, or not completely prepared, or was not made available to the public, or not completely, in accessible form.

Section 32(1) requires the authority to open a procedure against an economic operator on a consumer's application where the consumer claims that the operator breaches the Act or the ordinance and the consumer therefore cannot use the product or service, or can use it only in a restricted way.

Section 32(1) lets the consumer instruct an association recognized under section 15(3) of the Behindertengleichstellungsgesetz, or a body under section 3(1), first sentence, item 1 of the Unterlassungsklagengesetz, to apply in the consumer's name or in their place. Section 32(2) requires the same procedure to be opened when such an association or body applies and the alleged breach affects its statutory field of tasks, without any violation of the applicant's own rights.

Section 32(3) provides that the authority decides on such an application by an administrative decision (Bescheid). Section 33(2) lets such associations and bodies bring remedies under the Code of Administrative Court Procedure against a decision addressed to them or against the authority's failure to act, without a violation of their own rights, where a provision of the Act or the ordinance is violated and their statutory field of tasks is affected.

Section 34(1) lets a consumer who claims that an economic operator breaches the Act or the ordinance apply to the conciliation body under section 16(1) of the Behindertengleichstellungsgesetz for conciliation proceedings. Section 35 requires economic operators to give the market surveillance authority, on its reasoned request, the information it needs for its tasks under the Act.

Section 35 lets a person obliged to give information refuse to answer questions whose answer would expose them or a relative to criminal prosecution or to proceedings for an administrative offence. Article 29 of Directive (EU) 2019/882 is the source of the consumer and association routes in sections 32 to 34. Article 30(2) of Directive (EU) 2019/882 requires penalties to be effective, proportionate and dissuasive.