Subproject C8

Managing uncertainty from the perspective of the law on product safety and product liability (product compliance)

This subproject explores the legal requirements that should be placed on innovative load-bearing systems, particularly those with the capability to alter themselves independently.

In addition to this, the subproject will investigate whether independently changing systems and also resilient technical products fit, in their development and manufacture, into the legal framework that has applied until now, or whether gaps in liability arise – conceptual solutions for which will then also be addressed by the subproject. Furthermore the subproject will also explore the question of whether the applicable guidelines for product safety should be extended to include security against sabotage.

Product safety legislation has recently gained considerably in significance: a growing number of call-backs and the ongoing tightening up of EU regulations have increased the importance of product compliance both for manufacturing industry and in academic debate. The relevance of our proposal is therefore apparent.

Mistakes in development and production are a risk for any company. It is therefore essential to take the legal requirements for a product into consideration during its development, construction and production to avoid liability and damage to the company’s reputation. In the terms of § 3 para. 1 ProdHaftG (the German Product Liability Act), a product is defective if it does not provide the safety that should be expected having taken account of all the circumstances. The expectation of safety that a person is entitled to assumes that when instructions for the product’s use and installation are followed, it can be used safely either for its intended use or in cases of foreseeable misuse. The duties owed during construction covered by the obligation to guarantee safety demand that manufacturers provide a level of safety in line with developments in science and technology that is at least equal to any alternative design for serial production. The manufacturer should already be including the possibility of behaviours beyond the intended use in the technical design phase when planning the construction of the product. Under current case law, this responsibility goes to the very limits of accidental misuse; abusive use is not the responsibility of the producer.

In the light of intelligent and generally self-adaptive systems – that is to say the increasing intertwining of production processes and information technology – the question arises as to whether, in view of the increasing danger from IT attacks, products should provide safety from external sources as well as from internal sources, that is whether products should offer security from sabotage in addition to internal safety, offering what may be called resilience.

This question calls for extensive research with an exchange of ideas between the disciplines of engineering and law; something which is provided for in our research.

Autonomic technological systems that interact with their environment also pose new as yet unanswered questions in law in the area of product and manufacturer liability. The increasing levels of connectivity and the ever-growing complexity and processing speed make it at the very least more difficult to attribute the individual elements of an offence. At a certain level of autonomy, it may, in some circumstances, not be possible to establish with any certainty whether statements or actions produced by a system originate from the user of the system and responsibility can be attributed to him.

The lack of an identifiable causal connection creates problems in liability law: after all the use of self-adaptive technical systems is not restricted to the automotive industry but extends to numerous other fields of engineering, which are not covered by a no-fault strict liability. If the learnt behaviour of a system is not foreseeable for the user, he cannot be accused of being at fault, giving questions concerning civil liability a whole new significance.

[1] Wendt, Janine; Oberländer, Marcel: Product Compliance: Neue Anforderungen an sichere Produkte. In: Zeitschrift für Energie- und Technikrecht – ZTR 2/2016, 62-70

[2] Wendt, Janine; Oberländer, Marcel: Produkt- und Produzentenhaftung in Bezug auf selbstständig veränderliche Systeme – Ein Überblick. In: Zeitschrift für Innovations- und Technikrecht – InTeR 2/2016, 58-65
  Name Contact
Subproject Managers
Prof. Dr. iur. Janine Wendt
+49 6151 16-24576
Scientific Staff
Laura Joggerst
+49 6151 16-24577