An exciting question that should be of particular interest to product manufacturers – but of course also to affected consumers – is whether and, if so, for what the “TÜV”, i.e. the various TÜV companies spread throughout Germany, is actually liable if a product turns out to be unsafe despite having been awarded the GS mark?

The problem

This question is particularly interesting and relevant with regard to the so-called “GS mark”, which the TÜV assigns to manufacturers for their products for a not inconsiderable fee. “GS” stands for “tested safety” and is intended to reassure prospective buyers that the product in question is “safe”.

But what happens if a product turns out to be unsafe? This question is of considerable importance because the product manufacturer is of course liable to its buyers for the safety of its products in accordance with applicable product liability and safety law. But then the question arises as to whether the TÜV, which has “confirmed” the safety of the product to the manufacturer – as already mentioned: for a not inconsiderable fee – is liable for its misjudgement?

The legal situation

First of all, who is TÜV and what does it actually do in the context of the so-called “GS mark”?

Technical Inspection Association (known by the abbreviation “TÜV”) refers to registered associations that carry out safety inspections as technical testing organizations. In most cases, these safety inspections – like the “GS mark” in focus here – are based on legal regulations that stipulate who is authorized to carry out these inspections in addition to the object of the inspection. The best-known organizations authorized to carry out these tests are the associations operating under the protected “TÜV” brand (e.g. TÜV Süd, TÜV Rheinland or TÜV Nord).

The legal basis for the “GS mark” in question here is §§ 20 ff. of the German Product Safety Act (ProdSG).

The TÜV “tests” and “inspects” products on behalf of product manufacturers and, if successful, then licenses corresponding certificates or seals (e.g. the “GS” mark) to the manufacturers. The manufacturers then launch their products on the market with the “blessing” of TÜV. The TÜV then earns a considerable amount of money through license fees.

Is the TÜV liable for (design) defects that occur later?

But what happens if it later transpires that the product “approved” by the TÜV has design defects that the TÜV could (or should?) have recognized during its inspection and damage occurs as a result?

It does not seem far-fetched to assume such liability, although interestingly there is little (if any) case law on this topic.

A closer look at this question reveals the following:

1.

The inspection of a product for compliance with the requirements of the German Product Safety Act (ProdSG) and the confirmation of the existence of these requirements by means of a certificate is an expert activity under private law to which the law on contracts for work and services applies (see judgment of the Munich Higher Regional Court of July 30, 2009, 23 U 2005/08).

In my opinion, the manufacturer should not be obliged to check the accuracy of the TÜV’s information itself. The manufacturer of the product may rely on the award of the seal (see judgment of the OLG Munich of 30.07.2009, 23 U 2005/08).

2.

Whether the TÜV has breached its obligations or is therefore potentially liable for damages is therefore fundamentally determined by the content of the GS mark contract.

However, the scope of duties must at least comply with the law. Section 21 (1) ProdSG states:

The GS body may only award the GS mark if

1.

the tested type meets the requirements according to § 3 and, if it is a consumer product, also complies with the requirements according to § 6,

2.

the tested type meets the requirements of other legal regulations with regard to ensuring the protection of the safety and health of persons,

3.

the specifications determined by the Product Safety Committee for the award of the GS mark have been applied when testing the type,

4.

precautions have been taken to ensure that the products ready for use comply with the tested type.

Section 21 (1) No. 1 ProdSG is of particular relevance, as it states that the GS mark may only be awarded if the requirements of Section 3 ProdSG are met. § Section 3 ProdSG, for its part, is the central standard of product safety law as it stipulates that only a safe product may be made available on the market.

One thing is certain:

Just like the manufacturer, the TÜV must all requirements that apply to making products available on the market if it wishes to license its contractual partner to use the legally standardized GS mark within the framework of a GS mark contract.

3.

If it is further assumed that TÜV has imputably and culpably breached its contractual obligations in the individual case, namely by

• did not carry out the product testing properly,
• overlooked or concealed recognizable defects, or
• omitted an indication in this respect and
• then wrongly – in violation of § 21 ProdSG – awarded a certificate of compliance with all regulations,

in my opinion, liability on the part of the TÜV (or other “GS bodies”) for any resulting damage (product liability cases) is anything but remote.

Because:

4.

If the “GS mark work contract” had been duly fulfilled, the TÜV should have refused to award the GS mark with reference to the safety deficiencies found.

But then – in my opinion, this can be assumed without further ado – the manufacturer would not have placed the product on the market.

Consequently, the damage in question would not have occurred.

5.

Further interim result:

A pure causality analysis (= causation analysis) suggests the assumption of liability.

6.

Ultimately, from a valuation and imputability point of view, the decisive factor is likely to be whether the TÜV actually assumes product responsibility in relation to the manufacturer that is relevant to liability .

In my opinion, there are important reasons why the TÜV should assume at least a share of responsibility towards the manufacturer for the safety of the product it tests:

It should be borne in mind that the “GS mark” test has two sides. The testing and possible awarding of the GS mark (§§ 20 ff. ProdSG) provided for by law is only “one side of the coin”.

In my experience, it is precisely this side of the coin that TÜV regularly uses to justify the fact that it is not responsible for the safety of the product it tests. Their argument is that they “only” carry out the legally required GS mark test on the basis of the relevant standards (DIN, EN etc.). If he carries out the test “in accordance with the standard” – which is probably the case most of the time – he cannot be accused of anything.

In my opinion, this view is simply too narrow. TÜV has undertaken to test the safety of the product in question on the basis of a contract for work and services. By law – and thus not contractually restrictable – the TÜV must carry out this test to the same extent – and thus, in my opinion, be responsible for it – as the manufacturer itself. Last but not least, it is important in this context that the TÜV pays dearly for the quality seal (“GS”). In my opinion, it follows from this that the TÜV also assumes responsibility towards the manufacturer, who pays it dearly, for ensuring that the product in question is actually safe. If it is not, the TÜV is liable in the event of damage. In my opinion, the latter also applies to injured consumers who had purchased the product in question not least because of the confidence in its safety conveyed by the GS mark. The contract for work and services between TÜV and the manufacturer should regularly have a protective effect in favor of the consumer.