As solicitor Johannes Richard reports in a current contribution in the Shop Operator Blog, initially the manufacturer is liable for the conformity of the relevant products. Yet the seller also has inspection obligations before offering the products on the market. In many cases of violations, especially of product labelling requirements, the retailer may also be held liable.
The BGH (decision of 12 January 2017 – I ZR 258/15) clarified in its ruling handed down on “motif contact lenses” that the retailer’s liability arises from Section 6 (5) p. 1 of the Product Safety Act, which reads as follows: “Retailers are required to help ensure that only safe consumer products are made available on the market. In particular, they must not make a consumer product available on the market which they know or ought to know, based on the information in their possession or experience, does not comply with the requirements laid down in Section 3.”
In the case of personal protective equipment (PPE), the inspection obligations are much more extensive: In this context, retailers need to ascertain, amongst other things, whether the product bears a CE marking and must inspect the necessary documents and instructions as well as type, batch or serial numbers.
If an incorrectly labelled product is sold, then the product is generally not marketable, i.e., it may not be sold. Not only do the market surveillance bodies, i.e., the public authorities, deal with violations of this kind. Competitors can also issue written admonitions for such violations.
The trade-e-bility consultants will be delighted to assist you if you have any questions on the subject of product inspections. Please call +49/40/750687-397 or send an e-mail to: firstname.lastname@example.org.