2021-10-19 Safety according to the Product Safety Act ProdSG and avoid liability cases – we support you. With legally compliant measures for machine safety and CE marking.
The pure law for product safety
A new version of the ProdSG has been in force since 16 July 2021. The ProdSG is now a pure law on the requirements for making products available on the market.
No strong impact
There is probably no strong impact on economic actors by the ProdSG 2021, but some changes to the content stand out: the explicitly mentioned fulfillment service provider, possible legal regulations to restrict or prohibit certain products, and the transfers of articles to the Market Surveillance Act MÜG and the Act on Installations Requiring Surveillance ÜAnlG, see the Blog ProdSG 2021.
This stands out in the ProdSG 2021
Prohibitions by statutory order
The Federal Government may, with the consent of the Bundesrat, restrict or prohibit by ordinance the provision of products that pose a high risk to the safety or health of persons, to animals, to plants, to the soil, to water, to the atmosphere or to significant material assets.
Product safety-specific regulations can still be found in the ProdSG. For example, the obligation to carry out random checks on consumer products made available on the market or information obligations in connection with the GS mark.
Fulfilment service provider
Fulfilment service provider is an economic operator that provides at least two of the following services: Warehousing, packaging, addressing, and shipping of products in which it does not have ownership rights. Parcel delivery services, freight transport services are excluded (see § 2 No. 11 ProdSG). The fulfillment service provider is involved with manufacturers, distributors to provide products on the market – and may not knowingly pass on dangerous products, he may have to inform the competent market surveillance authority.
The ProdSG requires and regulates
The ProdSG sets requirements for products on the market, but does not apply, for example, to certain used products or food, feed and animals. The law regulates, for example:
- Prerequisites for making products available on the market
- Obligations of economic operators such as manufacturers, importers, distributors, fulfilment service providers, authorised representatives, exhibitors
- GS mark, CE marking
- Conformity assessment bodies, notified bodies
- Market surveillance (only product safety specific regulations, further regulations in the Market Surveillance Act MÜG)
- Tasks of Federal Institute for Occupational Safety and Health and Product Safety Committee
- Penalty and fine regulations
Required by law for machines
The Machinery Directive is implemented into German law by the Product Safety Act ProdSG and the Machinery Ordinance (9th Ordinance to the Product Safety Act). Products must not endanger the safety and health of persons and the environment when they are made available on the market.
In addition to the intended use, the manufacturer must also consider the foreseeable use for the requirement of safety according to the Product Safety Act ProdSG.
Legal basis for safety according to the Product Safety Act ProdSG
The full name of the Act on the Provision of Products on the Market (Product Safety Act – ProdSG) of 27 July 2021 is: Product Safety Act of 27 July 2021 (BGBl. I p. 3146, 3147), as amended by Article 2 of the Act of 27 July 2021 (BGBl. I p. 3146).
The current version is textually proven by the amendment by Art. 2 G v. 27 July 2021 I 3146 (No. 49), documentarily not yet finalized. The current ProdSG replaces V 8053-8 v. 8 Nov 2011 I 2178, 2179; 2012 I 131 (ProdSG 2011).
The Product Safety Act had to be adapted due to the European Regulation (EU) 2019/1020 on market surveillance and the conformity of products (Regulation (EU) 2019/1020 or EU Market Surveillance Regulation (MÜ-VO)).
The law for the adjustment of the product safety law and for the reorganization of the right of the plants requiring supervision of 27 July 2021 was published on 30 July 2021 in the Federal Law Gazette, the law for the reorganization of the market supervision of 09 June 2021 already on 17 June 2021.
Liability for machinery and equipment
The Product Liability Act ProdHaftG applies to all machinery provided, displayed or used for the first time on the market in the course of a business activity.
Product liability means: The manufacturer is liable for damages resulting from the use of his products. Manufacturer according to the ProdHaftG is:
- Manufacturer of the final product
- Manufacturer of a defective partial product or a defective basic material
- Importer who imports a product into the EU
- Distributor who affixes his name, trademark or similar on the product
- Supplier, if applicable.
The manufacturer is also liable if neither intent nor negligence can be imputed to him. Directly and indirectly injured parties are entitled to claim. Warranty claims under the German Civil Code (BGB) remain unaffected by liability under the ProdHaftG.