Failure to comply with an information obligation under the Product Safety Act has consequences for the manufacturer of a product under competition law. The provisions of the Product Safety Act constitute a market conduct regulation.
An infringement, even with the use of DIN standards, can give rise to a claim for injunctive relief. This was decided by the Higher Regional Court of Düsseldorf in a ruling dated March 17, 2016 (case no. I-15 U 38/15).
Breach of information obligation under the Product Safety Act as an unfair act
Actions between competitors have consequences under competition law if they are unfair within the meaning of Section 3a UWG. According to the wording, a statutory provision must have been violated. This provision must be intended to regulate market behavior in the interests of market participants.
The Product Safety Act plays a particularly important role in the manufacture of goods. Without compliance with these regulations, making products available on the market is unthinkable. A violation can therefore constitute an unfair act.
The Product Safety Act as a legal regulation
What is to be understood by a statutory provision within the meaning of Section 3a UWG is determined by Article 2 EGBGB. In principle, any legal norm can be subsumed under this. If the manufacturer of a product neglects its duty to provide information regarding the safety and health risks for persons, this constitutes a breach of Section 3 para. 2 ProdSG. This standard constitutes a statutory provision in this sense. Technical regulations (such as DIN standards), which in themselves do not constitute statutory provisions within the meaning of Section 3a UWG, must be distinguished from this.
Protection of the safety and health of persons
The wide-ranging product market requires compliance with protective regulations. If products come onto the market that could obviously pose a risk to people, the buyer must be adequately informed in advance.
Whether a product meets the requirements of § 3 Para. 2 ProdSG must be examined in detail. In this context, there is the possibility acc. § 5 Abs. 1 ProdSG to consult other technical specifications.
Duty to inform Product Safety Act: Consultation of DIN standards
The Düsseldorf Higher Regional Court case involves two manufacturers of diamond cutting blades. These cutting discs, which belong to the craftsmen’s supplies sector, were offered for sale to customers without a safety recommendation.
The court has now determined that a claim for injunctive relief cannot be based on a breach of DIN standards in isolation. In contrast to statutory regulations, DIN standards are non-binding recommendations. However, since the regulations represent a concretization of § 3 para. 2 sentence 1 ProdSG, they must also be observed within this framework.
DIN standards therefore play a significant role in competition – even if they do not constitute “statutory provisions” within the meaning of Section 3a UWG. Their observance and consideration can only be recommended to every market participant.