Podium discussion, Tipi am Kanzleramt Berlin
2022 - The Future of Product Responsibility - 8. November 2022

Marketplace must block recognisably non-compliant products

In a competition law case, the Higher Regional Court (OLG) of Frankfurt/Main laid down comprehensive obligations for the operator of an online marketplace if products that do not comply with product law are sold via its platform.

As early as 30 March 2021, trade-e-bility reported that bol.com, eMAG, Wish.com, AliExpress, Amazon, eBay, Rakuten France, Allegro, Cdiscount, Etsy and Joom signed the “Commitment for Better Product Safety” in order to remove dangerous products from their websites in cooperation with the EU member states. Accordingly, seller accounts whose products do not comply with the guidelines will be blocked. In a further step, Amazon had recently announced plans to block offers from 15 June 2022 that do not meet the guidelines.

The trend relating to marketplace liability or the control obligation of marketplace operators and the associated blocking of sellers’ offers is now continuing. In the publication ‘Neue Juristische Wochenschrift’ of 27 May 2022, the lawyers Dr Arun Kapoor and Prof. Dr Thomas Klindt highlight a ruling by the Higher Regional Court of Frankfurt/Main that specifically deals with the product law obligations imposed on the operator of an online marketplace in concrete terms.

In a competition law case, the Higher Regional Court (OLG) of Frankfurt/Main thus stipulated comprehensive obligations for the operator of an online marketplace if products that do not comply with product law are distributed via its platform.

In this particular case involved non-conforming floating discs that qualify as personal protective equipment (PPE) as well as a consumer product under the Product Safety Act. These floating discs lacked the necessary manufacturer and CE marking. Moreover, the products did not have the required EU declaration of conformity. The Higher Regional Court of Frankfurt/Main ruled that the operator of an online marketplace must immediately block the specific offer as soon as it has been notified of clear infringements of the law. In addition, the online marketplace operator must ensure that there are no further violations of the offending dealer’s account. The obligation is limited by the fact that significant consumer interests must be affected – which in the present case was health protection.

The obligation also only applies if the non-conformity of the products concerned is easily recognisable, which is affirmed in the absence of a manufacturer’s or CE marking, but not in the absence of an EU declaration of conformity or whether the markings are materially correct. The obligation to avert success only applies to dealers for whom there are indications of infringements due to previous complaints and if the new offer is almost identical to the previous, objectionable offer.

A favourable start to avoid being delisted by the marketplace operator due to easily recognisable non-compliance is made with a compliance audit in the online store that identifies policy violations before the marketplace, competitors or authorities do and, in addition to blocked dealer accounts, admonitions under competition law, sales bans or fines are imminent. Not to mention the losses of investments in online marketing, e-commerce and digitalisation.

The case discussed above clearly shows that labelling in particular is the central factor of trouble in the sale of non-food products. The topic of labelling in the context of international sales by far does not only concern the labelling of products and packaging, but also compliant information in online stores and in the instructions for use, e.g., CLP labelling, ecodesign labelling, energy efficiency label, CE mark, WEEE logo, manufacturer information, UN 38.3 labelling of batteries or disposal labels (e.g. Triman, Mobius Loop, Tidyman, 97/129/EC, Sorting Information). In this case, e.g., by means of an EU labelling inspection of your products, costly risks can be avoided.

Investing in own auditing measures pays off, as the costs of non-compliance are usually many times higher.

Michael Dierkes from trade-e-bility will be glad to advise you. Please call +49/40/750687-397 or send an e-mail message to beratung@trade-e-bility.de about solutions with which you can secure your success in the field of “Product Compliance”.

Michael Dierkes

Graduate economistMichael Dierkes
Sales Manager

Phone: +49 40 75068739-7