German Product Safety Act: a clean sweep?

On 1 December 2011, the German Equipment and Product Safety Act (GPSG) was replaced by the new Product Safety Act (ProdSG). The new name of the act and its considerable expansion (40 sections rather than the previous 21) would suggest that major changes have been made. Closer inspection shows however that despite numerous detail changes, the proven underlying structure of the GPSG has been retained.

In 2008, the European legislature adopted three legal instruments (Regulation (EC) No 764/2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State; Regulation (EC) No 765/2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products; Decision No 768/2008/EC establishing a common framework for the marketing of products). Together, these form the New Legislative Framework (NLF) for the placing of products on the market. The NLF introduced two new concepts which have been adopted verbatim in the new Product Safety Act. The concept of making available on the market replaces the former concept of "placing on the market". It is defined as "any supply of a product for distribution, consumption or use on the Community market in the course of a commercial activity, whether in return for payment or free of charge". Product will in future be understood to mean a "substance, preparation or good produced through a manufacturing process". The former concept of technical work equipment has been abolished in this context without replacement; the product group of technical work equipment is however fully covered as before, by the new concept of "product".

Scope defined more clearly

These two concepts are decisive for the scope of the ProdSG; at the same time however, they do not result in a substantial change from the GPSG. Altogether, the scope of the ProdSG has been formulated more clearly than that of the GPSG. Section 1 (3) of the ProdSG for example explicitly states areas (such as that of medical devices) which are excluded from its scope. By contrast, other areas have been retained within the scope, even though more specific statutory regulations exist for them. An example are construction products, which are considered by the relevant legislation primarily in terms of their suitability for the structure to be erected. Under the ProdSG, a construction product must however also be safe with regard to its use, an aspect that is of key importance for the protection of workers on construction sites.

Easing of trade in used products

At the heart of the ProdSG, the chapter containing the actual requirements for the making available of the products, much has been retained unchanged. One new provision will however be mentioned here. It concerns the making available on the market of used non-consumer products. This primarily affects used machinery. New machinery must satisfy the state of the art at the time at which it is made available on the market. Were it to be applied to used machines, this requirement would make most of them unsaleable. Older machines can however still be used safely even if they no longer satisfy the current state of the art. A provision taking this into account was therefore added to Section 3 (2) of the ProdSG. Essentially, it states that used machines need not satisfy the current state of the art, that they must however be safe at the time at which they are made available (again) on the market.

Finally, the reader's attention is drawn to two areas which are each addressed in a dedicated chapter of the ProdSG. The provisions governing the GS mark have been merged in Chapter 5 of the ProdSG, systematically restructured, and reformulated. At the same time, new provisions have been adopted which add weight to the GS mark overall and underline its significance.

The provisions governing market surveillance are summarized in Chapter 6 of the ProdSG. They have been extended with the addition of provisions from EU Regulation 765/2008/EC. As a result, market surveillance is anchored as a central module of a functioning European Single Market. This is also underlined by the substantial increase in the caps for fines. Safety-related faults will be punishable in future by fines of up to E100,000 (formerly E30,000).

Dirk Moritz
Federal Ministry of Labour and Social Affairs
dirk.moritz@bmas.bund.de