Operating instructions for a similar device only is anti-competitive

Under the Product Safety Act (ProdSG), there is an obligation to provide operating instructions drafted in the German language if certain rules must be observed in the use, modification or maintenance of a product. The Regional Court (LG) Essen had to decide whether operating instructions for a "practically identical device" would suffice.

A trader distributed safety-related products in the field of fire and fire prevention. A competitor discovered through a test purchase that an article ("... CO Alarm Gas Melder Kohlenmonoxid Gaswarner Warnmelder") in the trader's shop was not provided with German-language operating instructions upon delivery. Neither on the product packaging nor on the device itself were any safety-relevant information in German language provided. Only by email did the trader provide operating instructions in the German language, but not for the specific device, but rather for a similar device.

The competitor subsequently issued a cease-and-desist letter to the trader. He was of the opinion that German-language operating instructions for the specific product should have been provided.

However, the cease-and-desist letter was unsuccessful, as the trader who received it regarded the competitor's claims as unjustified. As a result, the competitor filed suit with the Regional Court (LG) Essen.

Decision of the Regional Court (LG) Essen regarding operating instructions for a similar device

The Regional Court (LG) Essen (Judgment of 11.03.2020, Az. 44 O 40/19) decided that operating instructions drafted in the German language should have been provided.

If certain rules must be observed in the use, modification or maintenance of a product in order to ensure the protection of safety and health, operating instructions in the German language must be made available under the Product Safety Act (ProdSG). This regulation of the ProdSG is a so-called market conduct rule. This means that violations of the ProdSG can simultaneously also constitute a violation of competition law and can thus be subject to a cease-and-desist letter accordingly.

In the present case, there was undisputed an obligation to enclose operating instructions under the Product Safety Act. The only disputed question was whether German-language instructions for a similar device would suffice. The court rejected this. There was only a minor difference between the devices. However, this fact was irrelevant because the operation of the devices differed from one another and thus different operating instructions would not comply with the statutory requirements.

Conclusion

If there is an obligation under the Product Safety Act to provide operating instructions in the German language, these operating instructions must relate to the specific device. The provision of operating instructions that only concern a similar product is not sufficient.