Facts
The X. AG trades in fire extinguishers and provides related service work. Due to a Rapex consumer warning from Poland, the market control of the Swiss Association for Technical Inspection (SVTI) was made aware of potentially faulty fire extinguishers with the labeling "A.". The SVTI carried out sample and conformity checks on "A." fire extinguishers and found defects, such as missing conformity declarations and missing information on the manufacture date on the devices.
The X. AG confirmed the product defect found in Poland and published a product warning. However, the SVTI informed the X. AG that the product warning was not sufficient, as the fire extinguishers lacked a manufacture date and therefore a buyer could not recognize whether their fire extinguisher was affected by the product warning.
The SVTI issued a ruling, which required the X. AG to publish a product warning again, affecting all "A." fire extinguishers of the S series from the sales date of January 2007. The X. AG was also required to check the fire extinguishers for their functionality and to affix the date of the check on the devices.
Considerations
The Federal Court had to decide whether the ordered product warning and the recall of the faulty fire extinguishers were proportionate. The X. AG argued that the recall had become disproportionate due to the time that had passed since then, as fire extinguishers had to be revised every three years and safety-conscious owners would have already had their fire extinguishers revised.
The Federal Court followed this argument and lifted the SVTI's ruling. It found that the ordered product warning and the recall of the faulty fire extinguishers had become disproportionate, as most fire extinguishers had already been revised and a recall would no longer make sense.
The Federal Court…