KANBrief 4/21
The Product Safety Act has been revised. The amended version came into force on 16 July 2021. Important updates and clarifications have been made at various points in the act.
The Product Safety Act (ProdSG) transposes the General Product Safety Directive 2001/95/EC and almost a dozen Single Market directives (including the Machinery Directive) into German law. As before, the act contains provisions that apply in the same measure throughout the national legislation transposing the European directives (ordinances under the ProdSG), such as definitions. The regulatory provisions governing the presumption of conformity, to which application of standards during the design and manufacture of products gives rise, also remain unchanged. The same applies to the competencies of the authority empowering conformity assessment bodies to carry out conformity assessment procedures. In Germany, this authority is the ZLS (the central body of the German regional authorities with responsibility for safety technology). The ProdSG also contains provisions governing the GS mark, the committee for product safety (AfPS), and administrative and criminal offences. Product-specific provisions such as essential health and safety requirements and the conformity assessment procedures to be applied can be found in the ordinances under the ProdSG.
Revision of the ProdSG was necessitated by the new European Market Surveillance Regulation 2019/1020 (MSR), which came into force in mid-July 2021. The Regulation governs market surveillance for 70 regulations and directives listed in its Annex I, covering approximately 40 product groups. The Market Surveillance Regulation is transposed into German law essentially by the German Market Surveillance Act (MüG). It applies to market surveillance of harmonized and non-harmonized products. The previous Sections 6 (concerning market surveillance) and 7 (concerning reporting duties) of the ProdSG were transferred to the MüG almost in full, in order to avoid duplication of provisions.
Amendment of the ProdSG was also prompted by the structure of the legal system. The ProdSG governs market surveillance and the requirements applicable to safe products. Previously however, the ProdSG also contained provisions for the inspection and operation of filling stations, lifts and other installations requiring regular inspection. These provisions are not related to product safety; rather, they concern the safety of workers and third parties in the danger zone when such systems are in operation. A dedicated act governing installations subject to mandatory regular inspection (ÜAnlG) now applies to these installations.
Important amendments in the 2021 ProdSG include provisions for providing consumers with information, including in digital form, on risks that are not immediately apparent, in accordance with Section 6 (1) No 1. A new authorization to issue prohibitory ordinances for the placing of products on the market has also been added in Section 8 (2). Previously, the ProdSG governed only the making available of products on the market (positive regulation), and not the prohibition of sale (negative regulation). Addition of the authorization was prompted by the fire at Krefeld Zoo on New Year's Eve 2020, which was caused by sky lanterns. Although use of these products was banned under police law in almost all German regions, their sale was not prohibited under the product safety legislation. Provision is now made for the sale of particularly dangerous products to be banned or restricted on a harmonized nationwide basis in the future. This has already been possible for some time in Austria, for example, and has led to bans and restrictions on the sale of laser pointers, softair weapons and paintball markers – as well as sky lanterns.
Important changes have also been made to the legislation governing the GS mark. The new Section 20 (1) Sentence 2 now obliges the manufacturer of a product bearing the GS mark who is not domiciled in the EU or EFTA to appoint an authorized representative in the EU serving as a point of contact for the authorities (for example for the event of administrative offences). This amendment is necessary, since recourse by the authorities against manufacturers in third countries in the event of objections has proved to be very difficult. In future, Section 22 (3) of the ProdSG will enable a blacklist on the BAuA website to provide information on cases of unlawful use of the GS mark. The ordinances under the ProdSG and surveillance of use of the GS mark are also the reason for provisions concerning market surveillance being retained in Section 25 of the ProdSG.
Further changes in the area of product safety can be anticipated. The draft Regulation on Machinery Products is currently being discussed at European level. The General Product Safety Directive is also being revised. As Sepp Herberger, the legendary trainer of the Germany national soccer squad, would have put it: "After the amendment is before the amendment."
Dr Sebastian Felz
German Federal Ministry
of Labour and Social Affairs (Bonn)