Loschelder successful for Armacell in 2nd instance – distribution of incorrectly marked insulation materials remains prohibited
In September 2018, Armacell GmbH, one of the world's leading suppliers of insulation materials, obtained an injunction against a competitor who sells and advertises insulation boards with incorrect fire class specifications. The Higher Regional Court of Hamburg has now confirmed this decision with its ruling of 20 February 2020 (Ref. 3 U 165/18).
According to the advertising and the product specifications presented by the competitor, the CE-certified products should meet the requirements of fire class "B" of the relevant EN/DIN standards in the event of a fire. However, a series of tests had shown that the products actually only met the lower requirements of the classes "C" or "D", i.e. the products are much easier flammable. For this reason, the Hamburg Regional Court had provisionally ordered the sale of the corresponding insulating materials be stopped.
The Higher Regional Court of Hamburg now confirmed the Regional Court's decision, taking into account numerous new defences raised by the competitor. In particular, the Higher Regional Court clarified that the advertised product features – contrary to the competitor's arguments – must not only be present at the time of placing the product on the market, but must be maintained permanently. Accordingly, Armacell GmbH was allowed to use regular, commercially available product samples to carry out the tests.
With its decision, the Higher Regional Court of Hamburg confirms that it is indeed possible to fully review the legality of a CE certification in the course of civil court proceedings. Tests carried out by the manufacturer itself and submission of formal evidence required in the context of obtaining CE certification are not sufficient. Rather, the manufacturer must use appropriate procedures to ensure that all the products that are placed on the market do in fact permanently possess the advertised properties.
Armacell GmbH was represented by Dr. Stefan Maaßen, LL.M., and Dr. Patrick Pommerening.
