In a competition law case, the Landgericht Essen (Regional Court, Essen) decided in a judgment of 11.03.2020 (44 O 40/19) that an instruction manual in English language does not meet the requirements of the German Product Safety Act (ProdSG) in general and the requirements of Sec. 3 Para. 4 ProdSG in particular. As a result, the claims asserted by the plaintiff due to anti-competitive behavior were well-founded.
The decision was based on the following facts: On 05.03.2019, the plaintiff (a large distributor and competitor), purchased the “CO Alarm Gas Detector Carbon Monoxide Gas Detector Warning Device” from the defendant (a small distributor) on a sales platform as part of a test purchase. On 07.03.2019, the device was delivered and indisputably not accompanied by an instruction manual in German language. The wording on the entire product packaging was exclusively in English. There was also no safety-relevant information in German language on the device itself. Against this background, the plaintiff assumed that he was entitled to injunctive relief under competition law for violation of Sec. 3 Para. 4 ProdSG. The defendant, on the other hand, was of the opinion that there was no violation of the ProdSG because – which was disputed between the parties – he had provided a link to a manual in German language by e-mail, dated 05.03.2019. These instructions were claimed to refer – apart from the battery used – not to the device in question, but to a practically identical device.
In this respect, the Landgericht Essen clarified that the instructions in English language provided by the defendant in paper form were not in conformity with Sec. 3 Para 4 ProdSG. Moreover, the link to an instruction manual in German language sent by the defendant is insufficient, if only for the reason that this manual did not relate to the identical product.
Conclusion: Anyone who places products within the scope of application of the ProdSG on the market is still well advised to include an embodied (in particular written) instruction manual in German language (the relevant link to the German manual would therefore also not have been sufficient in terms of product safety law), since this is the clear requirement of Sec. 3 Para. 4 ProdSG in case safety-relevant instructions have to be made available. Otherwise, the product not only lacks marketability (with the consequence of potential market surveillance measures pursuant to Sec. 26 Para. 2 ProdSG), but it may also have considerable consequences, for the economic operator concerned, in terms of competition law.
Link to the judgement: LG Essen, Urt. v. 11.03.2020 (44 O 40/19)
For further information: LG Potsdam, MMR 2015, 335 ff.; Schucht, NJW 2016, 3681 ff.
Do you have any questions about this news or would you like to discuss the news with the author? You are welcome to contact: Dr. Carsten Schucht
