The 10 most important questions about manufacturers' recall obligations

Dr Carsten Schucht: Yes, experience has shown that such concerns are not unjustified: Recalls ordered by the authorities or ‘voluntary’ recalls undoubtedly represent a level of escalation that does not leave much room for further measures. Nevertheless, not every safety-related defect leads directly to a recall. In the B2B machinery sector in particular, a safety warning is typically sufficient (at least in Germany). And even if there is a recall, the costs do not always have to be immeasurable. The specific circumstances of the individual case are decisive, i.e. in particular the number of products affected, the sales regions, the traceability or the costs of the replacement or repair action. Secondly, recourse against a supplier may be possible if the action is attributable to a defective supplier part. And thirdly, recall cost insurance may be available to cover these costs.

Nevertheless, every economic player or manufacturer would do well to prepare intensively for a recall or a safety warning. Anyone who takes this task seriously and deals with the issue of traceability, for example, may be able to significantly reduce the costs in the event of a recall.

Dr. Carsten Schucht: It is indeed important to be properly prepared for the ‘worst case’. This refers to recall or product crisis management. In many cases, there are already obligations under public law to take these precautions. This applies to all consumer products, for example. Even without legal obligations, every manufacturer (especially in the unregulated B2B sector) would do well to ensure that appropriate processes are in place. This is required not least by the producer's liability under civil law. Even if such management is not currently spelt out as a separate commercial obligation, it is rightly an elementary component of the duty to avert risks. In other words, the effective avoidance of risk can easily suffer if there is a lack of customised recall management. In the worst-case scenario, this absence can then lead to civil liability.