Bill amending German Product Safety Act passed

On 20 May 2021, the Bundestag passed the revised committee version of the bill amending the Product Safety Act and adapting the law on monitoring installations. As we reported with regard to the previous ministerial draft, it was necessary to amend the Product Safety Act (ProdSG) due to the European Market Surveillance Regulation (EU) 2019/1020 (Regulation), which will become directly applicable on 16 July 2021. The Regulation is transposed into German national law mainly via the newly created Market Surveillance Act (MüG). Therefore, Part 6 (Market Surveillance) and Part 7 (Information and Reporting Obligations) of the current ProdSG have been almost fully transferred to the MüG. When amending the ProdSG, the legislator also seized the opportunity to resolve some legal quirks: the regulations on installations requiring monitoring, which were historically outside of the system, will finally be spun off into a separate new Installations Monitoring Act (ÜAnlG). The new ProdSG thus focuses on regulating provision in the market, but no longer regulates the operation of installations, and thus becomes purely a law about regulated product safety. The ProdSG also contains the following content changes in the version applicable from 16 July 2021:

• For the first time, the federal government will have the opportunity to restrict or outlaw the provision of certain hazardous product types by way of a prohibition ordinance. To date, this instrument has been used in Austrian product safety, for example. It was applied to take steps against laser pointers which were harmful to eyesight.
• The rules on awarding the GS (Geprüfte Sicherheit – “Tested Safety”) mark as well as the obligations of the GS bodies have been specified. These amendments appear to have little impact on manufacturers and EU importers as they are based on actual legal practice and the experience of the issuing authorities.
• Regarding market surveillance, the new ProdSG simply contains rules related to the GS mark which are thus specific to product safety law. But there are no content changes in that area compared to the old ProdSG.

Even though the new ProdSG appears to have virtually no impact on the economic players involved, we must not forget the reason for amending the ProdSG: the new European Market Surveillance Regulation, which also comes into force on 16 July 2021. The Regulation considerably extends the powers of the market surveillance authorities and adapts them to digital progress and to online trade. As an example, there are the powers to buy product samples under a false name (mystery shopping), to create copies of products (reverse engineering) and to have content erased from online interfaces.