GermanyBarrierefreiheitsstärkungsgesetz (BFSG), accessibility duties of importers and distributors of consumer products
Barrierefreiheitsstärkungsgesetz (BFSG), §§ 9 bis 11, 13 und 37
In force since .
An accessibility requirements rule binding public and private bodies.
- Instrument type
- an act of a legislature
What it requires
- If you are an importer, place on the market only products that meet the accessibility requirements of the Verordnung zum Barrierefreiheitsstärkungsgesetz, and only after the manufacturer has carried out the conformity assessment under Annex 2, prepared the technical documentation, marked the product with the CE marking and met its marking duties, and the product carries instructions for use and safety information (BFSG, s. 9(1) and (2); Directive (EU) 2019/882, Art. 9).
- If you are an importer and know or have reason to believe that a product does not meet the requirements, do not place it on the market until conformity is restored, inform the manufacturer and the market surveillance authorities, and keep storage and transport conditions that do not impair conformity (s. 9(3) and (4)); the corrective-measure, withdrawal, recall and register duties of section 6(4) and (5) apply to you in the same way (s. 9(5)).
- State your name, trade name or brand and postal address on the product (or its packaging or an accompanying document), ensure that German instructions for use and safety information that meet the ordinance accompany it, keep a copy of the EU declaration of conformity for five years for the authorities and be able to produce the technical documentation on request, and give the authority the information and documents it asks for on a reasoned request (s. 10 and s. 7(5)).
- If you are a distributor, make a product available on the market only when it bears the CE marking, the instructions and safety information accompany it, and the manufacturer and the importer have met their marking duties (s. 11(1); Directive (EU) 2019/882, Art. 10).
- If you are a distributor and know or have reason to believe that a product does not meet the requirements, do not make it available until conformity is restored, and inform the manufacturer or importer and the market surveillance authorities without delay; keep storage and transport conditions that do not impair conformity; and ensure that corrective measures are taken and the product is withdrawn if conformity cannot be restored, informing the market surveillance authority and those of the Member States where you made it available, with details (s. 11(2) to (4)).
- If you are a distributor, give the authority the information and documents it asks for on a reasoned request and cooperate with it on measures to restore conformity (s. 11(5) with s. 7(5)).
- If you are an importer or distributor that sells a product under your own name or brand, or modifies a product already on the market so that its conformity may be affected, meet the manufacturer's duties in sections 6 and 7 instead (s. 12; Directive (EU) 2019/882, Art. 11).
- Tell the market surveillance authority, on its request, from whom you obtained a product and to whom you supplied it, and be able to produce that information for at least five years from obtaining or supplying the product (s. 13(1) and (2)).
- The defences of section 16 (fundamental alteration) and section 17 (disproportionate burden) and the relief for microenterprises dealing with products apply to you as to a manufacturer (ss. 16 and 17).
These lines are LexLint's reading of the law's text.
If you get it wrong
Penalty structure
Section 37(2) sets a fine of up to EUR 100,000 for the offences in section 37(1), items 1, 7, 8, 9 and 10, and up to EUR 10,000 for the other offences in section 37(1). The offences are administrative offences (Ordnungswidrigkeiten) committed intentionally or negligently.
- Rule
- Fixed only
- As of
- Currency
- EUR
- Fixed cap
- 100,000
Who enforces it
Enforcement body
The market surveillance authorities of the Länder (Marktüberwachungsbehörden), in practice the joint monitoring body of all 16 Länder, the Marktüberwachungsstelle der Länder für die Barrierefreiheit von Produkten und Dienstleistungen (MLBF AöR)
What this law does
Section 2 provides that an importer is a natural or legal person, or a partnership with legal capacity, established in the Union that places a product from a third country on the Union market. Section 2 provides that a distributor is a natural or legal person, or a partnership with legal capacity, in the supply chain that makes a product available on the market, other than the manufacturer or the importer.
Section 9(1) allows an importer to place on the market only products that meet the accessibility requirements of the ordinance under section 3(2). Section 9(2) allows an importer to place a product on the market only when the manufacturer has carried out the conformity assessment and prepared the technical documentation, the product bears the CE marking and carries instructions and safety information, and the manufacturer has met its marking duties.
Section 9(3) bars an importer that knows or has reason to believe that a product does not conform from placing it on the market until conformity is restored, and requires it to inform the manufacturer and the market surveillance authorities. Section 10(1) requires the importer to state its name, trade name or brand and its postal address on the product when placing it on the market.
Section 10(2) requires the importer to ensure that instructions for use and safety information in German, meeting the requirements of the ordinance, accompany the product. Section 10(3) requires the importer to keep a copy of the EU declaration of conformity for the market surveillance authorities for five years from placing the product on the market.
Section 11(1) allows a distributor to make a product available on the market only when it bears the CE marking, the documents under section 7(3) accompany it, and the manufacturer and the importer have met their marking duties. Section 11(2) bars a distributor that knows or has reason to believe that a product does not conform from making it available until conformity is restored, and requires it to inform the manufacturer or importer and the market surveillance authorities without delay.
Section 11(4) requires a distributor to ensure that corrective measures are taken for a product it has made available that does not conform, and that the product is withdrawn if conformity cannot be restored. Section 13(1) requires an economic operator to tell the market surveillance authority, on request, from whom it obtained a product and to whom it supplied it.
Section 13(2) requires the operator to be able to produce that information for at least five years from obtaining or supplying the product. Section 37(1), item 7 makes it an administrative offence for a distributor to make a product available in breach of section 11(1), item 1 or section 11(2), first sentence. Section 37(1), item 1 makes it an administrative offence for an importer to place a product on the market in breach of section 9(1).
Section 37(2) sets a fine of up to EUR 100,000 for items 1, 7, 8, 9 and 10 of section 37(1), and up to EUR 10,000 for the others. Because section 37(1) covers intentional and negligent conduct alike without a separate maximum, section 17(2) of the Act on Administrative Offences caps the fine for a negligent offence at half of those amounts.
Section 17(4) of that Act provides that the fine should exceed the economic benefit the offender drew from the offence, and lets it exceed the statutory maximum where that is needed. Article 9 of Directive (EU) 2019/882 is the source of the importers' obligations. Article 10 of Directive (EU) 2019/882 is the source of the distributors' obligations.
When LexLint raises it
When your app profile says your app distributes a software product.
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