Criminal Product Liability in Germany: Impact of the New EU Product Liability Directive and Product Safety Regulation

The new Product Liability Directive (PLD, Directive (EU) 2024/2853), which entered into force on 8 December 2024, provides for a major overhaul of the existing regulatory framework. Together with the General Product Safety Regulation (GPSR, Regulation (EU) 2023/988) that came into force on 13 December 2024, the PLD marks a significant shift towards stronger regulatory enforcement. Both aim to take account of new technologies, digitalisation, and related product developments. While the PLD focuses on civil liability and will increase liability in Germany, the GPSR sets out specific obligations for legal entities to ensure that consumer products are safe on EU markets. 

The tightened regulation is very likely to also increase the risk of criminal liability for the directors of manufacturers and importers in Germany. The regulatory requirements for product safety influence the overall standard for appropriate conduct as well as the threshold for negligence and intent – beyond civil liability. In light of these tightening regulations, we provide an overview of the criminal product liability in Germany, analyse how claimants alleging defective products may use criminal complaints, and conclude what this means for product safety compliance.

Indirect Impact on German Criminal Law

Neither the PLD nor the GPSR provide for additional criminal product safety offences. Rather, both presuppose that the existing national criminal law provisions of the Member States allow for a sufficiently effective prosecution. Nevertheless, the new legal requirements have an impact on German criminal proceedings.

In Germany, the criminal law already comprehensively covers the behaviour of those responsible for product safety. Investigations and criminal prosecution are particularly likely when defective products cause bodily harm and the person responsible may have acted at least negligently. In such cases, individuals within the respective company may be investigated for (negligent) bodily harm (Section 229 of the German Criminal Code) or, in case of fatal consequences, for negligent manslaughter (Section 222 of the German Criminal Code). The decisive factor is the extent to which there is a causal link between the manufacturer’s or importer’s misconduct (e.g., inadequate quality control), the product defect and the bodily harm, and who is personally responsible for this. 

In Germany, it is also considered a criminal offence to deviate from particularly important product safety regulations if this endangers the life or health of consumers or significant assets (Section 29 of the German Product Safety Act). Additional criminal provisions also apply for comparable conduct relating to medical devices (see Sections 92 and 93 of the German Medical Device Law Implementation Act). Further, if company directors are personally liable for one of the aforementioned offences, fines can be imposed on the company in question.

Unlike in civil cases, where no-fault liability can apply, criminal cases require the proof of negligence or intent. In deciding whether someone has acted negligently or even intentionally, public prosecutors can draw on EU product safety requirements. These set standards for the care with which companies must design, market, and monitor their products and therefore have an indirect impact on criminal prosecution. For example, the GPSR places stricter requirements on manufacturers’ compliance management systems and specifically requires legal entities to improve the effectiveness of recalls and to notify affected consumers directly who have purchased a product through their interfaces. The way in which legal entities comply with these and other regulatory requirements can have a direct impact on any alleged criminal liability.

Increased Risk of Criminal Liability

For German legal entities and their directors, the GPSR means an increased risk of criminal liability. The GPSR as well as the PLD regimes reflect a heightened focus on ensuring product safety and holding legal entities accountable for any defects. As the regulatory framework tightens, the responsibility to prevent and address product defects becomes more pronounced, highlighting the need for diligent compliance and proactive safety measures.

The German legal framework already imposes significant responsibilities on company directors to ensure product safety. Should a defective product cause physical harm to consumers, company directors can be held criminally liable if they are found to have neglected their duty to ensure product safety. This responsibility ranges from the placing of a product on the market and the provision of the necessary safety information, to the question of a possible product recall for safety reasons or the obligation to provide additional information. In addition, several relevant issues of criminal liability for product safety have been the subject of judicial decisions in Germany. For example, the responsibility of all board members for product safety, when the internal consensus was that only one of them should be responsible. Courts have also dealt with the (low) requirement of causality between the health risk posed by a product and the actual damage to the health of customers.

Use of Criminal Complaints

Criminal investigations may also become a factor for companies when potentially injured or otherwise damaged parties, including other companies along the supply chain, are primarily concerned with compensation. If consumers or companies claim they or their customers respectively have been harmed by defective products, they can file a criminal complaint against the manufacturer in order for the public prosecutor to initiate criminal proceedings. Such proceedings require only an initial suspicion (so-called ‘Anfangsverdacht’), which is a low threshold allowing for investigative measures, including a dawn raid on the company and individuals potentially responsible. 

Despite potential downsides for themselves, claimants may consider criminal complaints particularly effective, as information gathered in criminal proceedings can be used later in their civil cases once claimants have access to the investigation files. It can assist claimants build stronger cases for damages, thereby increasing the pressure on legal entities to settle claims or face extensive litigation. On the other hand, claimants can also weaken their own case by filing criminal complaints. Not only can they not withdraw them once filed, but they also reveal what the prosecution is investigating and ultimately deciding. If the prosecution does not find sufficient suspicion of a criminal offence, it will close the case, thereby strengthening the position of the legal entities accused for all other proceedings.

However, when allegations of criminal offences are brought, the challenge for companies is twofold. They are affected by investigations and may suffer lasting reputational damage if allegations of criminal conduct become public. Initial press reports about the criminal investigation can also trigger (further) civil lawsuits while customers may lose trust, directly impacting companies’ sales.

Conclusion

The PLD must be implemented by the Member States by 9 December 2026. The updated PLD and the GPSR are likely to place an even greater focus on product safety. These legislative activities highlight the critical importance of product safety and regulatory compliance. Companies and their directors will need to navigate this environment with heightened diligence in order to mitigate the risk of criminal liability and strengthen their corporate governance. At the same time, they need to prepare for how they would deal with potential criminal investigations.

For a more detailed evaluation of the new GPSR rules and further information on the PLD, please see our respective client briefing The new General Product Safety Regulation: A refresh of the EU’s product safety framework | Freshfields and The new Product Liability Directive | Freshfields.