Reporting requirements for defective products in Austria

Reporting requirements for defective products

What requirements are there to notify government authorities (or other bodies) of defects discovered in products, or known incidents of personal injury or property damage?

Once a product has been brought into circulation, producers, importers and vendors are required to inform the competent authority if they become aware of (or are made aware of) hazards their product poses to the consumers. Manufacturers and importers have to take measures that are suitable and appropriate for the product to enable them to recognise any dangers that may be posed by such products and take appropriate action to avoid such dangers. Vendors have to contribute to monitoring the safety of the products marketed, especially by passing on indications of any danger that may be posed by the product, by keeping and making available documentation required to trace products and by cooperating with measures by the manufacturers and competent authorities to avoid any danger within the scope of their business activities.

Within the scope of their business activities, they should ensure efficient cooperation with other marketers, consumers and authorities. There are special rules for high-risk goods.

What criteria apply for determining when a matter requires notification and what are the time limits for notification?

Any situation where a product does not meet the safety requirements under the Product Safety Act (see question 1) has to be reported to the competent authority. Notification about such hazardous products has to be made promptly (section 7, paragraph 4 of the Product Safety Act). In cases of serious danger (ie, any severe danger that requires rapid action on the part of the authorities even when it has no direct effect), there are special rules on inter-agency cooperation, temporary action to avert danger by the supervisory bodies (eg, seizure, ban on marketing, application of warning signs, etc) and (higher) fines.

To which authority should notification be sent? Does this vary according to the product in question?

The notification has to be sent to the ‘responsible authorities’. The responsible authorities are the state governors and the Federal Minister for Work, Social Affairs, Health and Consumer Protection. There are special rules for high-risk goods (eg, medical products).

What product information and other data should be provided in the notification to the competent authority?

All necessary information to judge the character and severity of the threat caused by the defective product should be provided. For high-risk products, there are special rules and regulations.

What obligations are there to provide authorities with updated information about risks, or respond to their enquiries?

Authorities have to be provided with updated information about risks and a response to their enquiries in a timely manner.

What are the penalties for failure to comply with reporting obligations?

Under Austrian tort law, anyone can lodge a claim for damages, if the non-compliance led to damages. However, claims for property damage cannot be based on violations of the reporting obligations, since the Product Safety Act’s scope of protection does not include property but only bodily harm.

Failure to comply with reporting obligations may also result in administrative penalties up to €3,000. For the first violation, the fines are significantly lower than that (eg, €300) thus they do not provide an adequate deterrence.

Under Austrian law, corporations can be held criminally liable (ie, be fined severely) if a ‘decision-maker’ (eg, board member) committed a criminal offence him or herself or under certain preconditions, if an employee committed a criminal offence (eg, if a decision-maker facilitated the criminal offence by not acting with the necessary due diligence).

Is commercially sensitive information that has been notified to the authorities protected from public disclosure?

Under the Austrian rules on public confidentiality, commercially sensitive information that has been notified to the authorities is protected from public disclosure.

May information notified to the authorities be used in a criminal prosecution?

Yes, any information disclosed to the authorities may be used in a criminal prosecution. The Austrian constitution also provides for a duty of inter-agency cooperation. This duty to cooperate applies to cooperation between authorities and the public prosecutor’s office.