English operating manual in Germany: Risk of warning notice

by Dr. Roland Hartmannsberger

Product Compliance

English operating manual in Germany: Risk of warning notice

In its judgement of 11.3.2020, the Essen Regional Court (Case No. 44 O 40/19) granted a claim for injunction and damages under competition law on account of the sale of electrical products to which only English-language instructions for use and English-language safety information were attached.

The decision: The defendant company sold electrical gas warning alarms (apparently a third-party product) to both commercial customers and consumers. All information on the product and packaging, as well as the accompanying instructions for use, were in English. Pursuant to Section 3 (4) ProdSG (German Product Safety Act), which applies to both the commercial and private sector, when products are made available on the market, instructions for use in German must be included if this is necessary to protect the safety and health of users. The court considered a German-language instruction manual to be necessary according to these standards – which is correct in view of the safety function of the product in dispute. However, the court did not substantiate the requirement of safety instructions on the product in German language, which is contained more extensively in the omission tenor. This is surprising, since the defendant was probably not itself a manufacturer, but only a dealer. However, a breach of duty also appears likely in this respect. This, for example, relates to dealer obligations for low-voltage products pursuant to Section 12 (2) No. 2 1. ProdSV (Product Safety Regulation): the dealer "must check whether the operating instructions and safety information in German are attached to the electrical equipment". The court left open whether the link to a German-language manual according to Section 3 (4) ProdSG, which according to the defendant was sent to the customer, would have been sufficient. In view of the clear wording and purpose of the provision, however, this will regularly have to be denied.

Practical impacts: Exclusively foreign-language operating manuals and hazard warnings are frequently found. However, product legal regulations usually require a German version. This applies not only to products with relevant safety hazards within the meaning of Section 3 (4) ProdSG, but also to numerous products that are subject to more recent harmonization legislation (e.g. according to EMC, Low Voltage Directive, Construction Products Ordinance). These obligations regularly affect not only the manufacturer, but also distributors and importers. Non-conformities are predominantly violations of competition law.

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