GermanyGesetz zur Modernisierung des Produkthaftungsrechts und zur Änderung weiterer Vorschriften (Bundesrat Drucksache 584/26), new Produkthaftungsgesetz transposing Directive (EU) 2024/2853
Entwurf eines Gesetzes zur Modernisierung des Produkthaftungsrechts
Finalized, with one agreed text, dated , as of .
A product liability rule binding private bodies.
- Private right of action
- Yes
- Instrument type
- a bill introduced in a legislature
As of .
Where it has got to
The text described here is Gesetzesbeschluss des Deutschen Bundestages, Bundesrat Drucksache 584/26. That print is 584/26, published .
Locally, this stage is kein Antrag auf Einberufung des Vermittlungsausschusses.
The stage above is recorded at www.bundesrat.de.
The Bundestag adopted the bill on in the version recommended by its Committee on Legal Affairs and Consumer Protection (Drucksache 21/8429), and the Bundesrat printed it as Drucksache 584/26. At its session of the Bundesrat decided not to request the Mediation Committee under Article 77(2) of the Basic Law, so under Article 78 the law is passed. Under Article 82 it is next signed by the Federal President and promulgated in the Bundesgesetzblatt.
What it requires
- If you develop or make software, or have it designed or made, you answer as its manufacturer; free and open-source software developed or supplied outside a business activity is outside the definition of a product (§§ 2(1) No. 3 and 3).
- Keep supplying the software updates and upgrades needed to keep the product safe while the product is within your control: if you are able to provide them yourself or through a third party you keep control, and a defect caused by software, by an update or upgrade, or by a missing necessary update is not excused because it arose after you put the product into circulation (§§ 8(2) and 9(2)).
- Meet the product-safety requirements that apply to your product, safety-relevant cybersecurity requirements included: they count in judging whether it is defective (§ 7 No. 5), and failing a binding product-safety requirement that protects against the injury presumes it defective (§ 20(1) No. 2).
- Account for what your product learns or acquires after it is put into circulation: the effect of that ability is weighed in judging whether it is defective (§ 7 No. 3).
- Keep records you could produce if a court orders disclosure on a claimant's plausible claim; failing to disclose despite the order presumes the product defective (§§ 19(1) and 20(1) No. 1).
- If you hold relevant evidence for a product liability claim against someone else, the court can, on the claimant's application, order you as a third party to disclose it, limited to what is necessary and proportionate, except to the extent you may refuse to testify under sections 383 to 385 of the Code of Civil Procedure (§ 19(1) and (3)).
- If you are a manufacturer outside the EU, your importer into the EU market and your representative appointed in writing and established in the EU are liable as the manufacturer is, and where there is neither, the fulfilment service provider is liable too (§§ 10 and 11).
- If you make a product available in the supply chain without being its manufacturer or importer, or run an online platform that lets consumers conclude distance contracts with traders where the conditions of Article 6(3) of the Digital Services Act are met, you are liable as the manufacturer is when no manufacturer, importer, representative or fulfilment service provider established in the EU can be identified, unless within one month of receiving the injured person's request you name one of them or your own supplier of the product (§§ 12 and 13).
- If you substantially modify a product without the manufacturer's consent and then make it available on the market or put it into operation, you are the manufacturer of the modified product (§ 5(1)).
- Do not rely on a contract term to limit or exclude your liability to an injured person; departing from the Act to their disadvantage is not allowed (§ 18).
- You are excused if you did not put the product into circulation, if the defect results from the product meeting legal requirements, or if the defect could not be recognized according to the objective state of science and technology at the relevant time (§ 9(1)).
- Claims lapse three years after the creditor learned, or should have learned, of the defect, the damage and the identity of the debtor, and expire ten years after the product was put into circulation or into operation, or 25 years for a latent personal injury (§§ 16 and 17).
These lines are LexLint's reading of the law's text, as of .
What this law does
The Bundestag adopted the government bill to modernize product liability law on . It adopted the bill in the version recommended by its Committee on Legal Affairs and Consumer Protection. The adopted text carries the title Gesetz zur Modernisierung des Produkthaftungsrechts und zur Änderung weiterer Vorschriften (Act to Modernize Product Liability Law and to Amend Further Provisions). The Bundesrat printed the adopted text as Drucksache 584/26 on .
The Bundesrat classes it as an Einspruchsgesetz (a law the Bundesrat may object to but need not consent to). On the Bundesrat decided not to request the Mediation Committee (Vermittlungsausschuss) on the Act the Bundestag adopted on . Under Article 78 of the Basic Law, a law adopted by the Bundestag is passed when the Bundesrat does not make that request.
Under Article 82 of the Basic Law, a law so passed is signed by the Federal President after countersignature and promulgated in the Federal Law Gazette (Bundesgesetzblatt). The bill transposes Directive (EU) 2024/2853 as a new Produkthaftungsgesetz. The committee report says that, because of the number of changes, the Produkthaftungsgesetz is to be restated. Under the bill the new Act applies from . Article 2 of the bill ends the Produkthaftungsgesetz of 1989 on .
The bill adds that the Produkthaftungsgesetz of 1989 stays in application for products put into circulation or into operation up to and including , in the version in force up to that date. Section 2(1) No. 3 makes software a product, except free and open-source software that is developed or supplied outside a business activity. The Bundestag's report states that software counts as a product regardless of how it is supplied.
Section 4(2) counts as a component any thing, any intangible object and any connected service that is integrated into or connected with a product. Section 1(1) makes the manufacturer liable for damage to a natural person whose body or health is injured through a defect in a product. Liability also covers a thing other than the defective product that is not used exclusively for professional purposes, and data that is not used for professional purposes.
Section 8(2) fixes the time for judging a defect at the moment the product left the manufacturer's control where the manufacturer kept control after putting it into circulation. The manufacturer's control exists where it or a third party with its consent integrates, connects or provides a component including a software update or upgrade, or changes the product, or where it is able to provide software updates or upgrades itself or through a third party.
The manufacturer is not liable for a defect that could not be recognized according to the objective state of science and technology at the relevant time. Section 9(2) also excludes the manufacturer's liability where it is probable that the product did not yet have the defect when it was put into circulation.
That exclusion does not apply where section 8(2) applies and the defect is due to a connected service, to software including updates or upgrades, to the lack of software updates or upgrades needed to maintain safety, or to a substantial modification. Section 10 makes an importer from a third country and a representative established in the European Union liable like the manufacturer where the manufacturer is established outside the Union.
Where there is no importer or representative established in the European Union, the fulfilment service provider is also liable. The Bundestag's committee changed the provisions on disclosure of evidence. Section 19 has the court order the defendant or a third party to disclose relevant evidence in its control on the application of a claimant who has presented facts and evidence sufficient to support the plausibility of a claim for compensation.
A third party need not disclose evidence where it may refuse to testify under sections 383 to 385 of the Code of Civil Procedure. A defect is presumed where the defendant fails to disclose relevant evidence despite a court order. A defect is also presumed where the claimant shows that the product does not meet binding product-safety requirements that protect against the risk of the injury suffered.
The claim for compensation lapses three years after the creditor learned, or should have learned, of the defect, the damage and the identity of the debtor. The Bundesrat's opinion on the government bill gives, as examples of changes from current law, tightened rules of evidence and the dropping of limits on liability such as the deductible for damage to things and the ceiling for personal injury.
Section 18 bars departing from the manufacturer's liability to the disadvantage of the injured person. The claim expires ten years after the product was put into circulation or into operation. The ten-year period extends to 25 years where a latent personal injury prevented the creditor from starting proceedings within ten years.
When LexLint raises it
When your app profile says your app crawls the web, trains models, generates content with AI, deploys a chatbot, sends automated outreach, makes high-risk automated decisions, processes voice recordings, processes biometric data, publishes adult content, operates a social platform, serves under-18s, operates an app store, ships a mobile app, reuses other publishers' content, distributes a software product, records calls, records text chat or tracks devices.