Public liability

Author: CEmarking Team | Last edited: 23.05.2020

In the case of infringements of product safety law, in addition to civil liability and the imposition of a fine under public law, criminal liability also comes into consideration if and insofar as a product has injured or killed product users or uninvolved third parties.

Who is liable in the company?

Only a natural person can be responsible in the criminal sense. If the producer is therefore a natural person, he can make himself liable to prosecution.

Regularly, however, the product manufacturer will be a company. Some European Countries still have no corporate criminal law. This does not mean, however, that criminal liability is out of the question if the manufacturer or importer is a legal entity.
In principle, the courts will examine in such a case whether there is fault on the part of the responsible body of the legal entity, the personally liable partner of the commercial company or any other appointed representative.

In the highest court jurisdiction of the Federal Court of Justice on criminal product liability, a two-stage approach has developed, according to which a criminal assessment is made in two steps. In the first step, the conduct of the company is examined with regard to compliance with the criminal liability requirements. In the second step, the behaviour of the individual employee is assessed. The result achieved for the enterprise is attributed to him or her if this is compatible with his or her position in the organization and its differentiated responsibility structure. This leads first and foremost to the liability of the responsible decision-makers and, if necessary, secondly to the liability of those who act as subordinate employees of the enterprise.

Misconduct in breach of duty

Only a legally disapproved, i.e. undutiful, behaviour is a criminal offence. A conduct is contrary to duty if it involves a risk of violation of protected legal interests which outweighs an interest worthy of protection in the performance of the act. In this context, case law attaches great importance to the protection of consumers from damage to their health.

Intention and negligence

A person acts intentionally who at least accepts the actual success (bodily injury, killing), even if he does not want to bring about its realisation directly.

Negligent is someone who does not accept the actual success, but who relies on the absence of damage in a manner contrary to his duty, i.e. who thinks "it will go well".

This means that a lack of a legally required risk assessment puts manufacturers or designers in need of proof.