European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Directive No 1999/44  purports to approximate national legislation governing the sale of consumer goods and to ensure a uniform minimum level of consumer protection as part of the internal market, without impinging on the provisions and principles of national law relating to contractual and non-contractual liability. However, it is only minimum harmonization: Member States may choose to adopt or m …

Directive No 1999/44

Directive No 1999/44  purports to approximate national legislation governing the sale of consumer goods and to ensure a uniform minimum level of consumer protection as part of the internal market, without impinging on the provisions and principles of national law relating to contractual and non-contractual liability. However, it is only minimum harmonization: Member States may choose to adopt or maintain more stringent provisions which ensure a higher level of consumer protection, provided that these measures still comply with the Treaty (Article 8). The procedural rules governing actions for safeguarding the rights of consumers under Directive No 1999/44 fall within the internal legal order of the Member States by virtue of the principle of procedural autonomy of those Member States, but must not be less favorable than those governing similar domestic actions (principle of equivalence) or such as to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law (principle of effectiveness) . A national court, before which an action relating to a contract which may be covered by Directive No 1999/44 is brought must determine whether the purchaser may be classified as a consumer within the meaning of that directive, even if the purchaser has not relied on that status, regardless of whether the consumer is assisted by a lawyer .

Having laid down the general principle of the duty for the seller to deliver to the consumer goods in conformity with the contract, Article 2 of the directive introduces a rebuttable presumption of conformity which covers the most usual situations. Goods are thus held to be in conformity where they comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model; where they are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted; where they are fit for the purposes for which goods of the same type are normally used; where they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising and labeling. The provision adds that the lack of conformity is not deemed to have existed where, at the time the contract was concluded, the consumer was aware, or could not reasonably be unaware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. By contrast, any lack of conformity resulting from incorrect installation of the consumer goods is deemed to be equivalent to lack of conformity of the goods if installation forms part of the contract of sale of the goods and the goods were installed by the seller or under his responsibility or, where installed by the consumer, the latter has observed incorrect installation instructions (Article 2(5)).

According to Article 3 of the directive, a consumer who informs the seller of a lack of conformity is entitled, in the first place, to require the seller to repair the goods or to replace them, free of charge, within a reasonable period. The right of the consumer to have the goods acquired under a distance contract brought into conformity “free of charge” in accordance with paragraph 3 does not include the seller’s obligation to pay the cost of transporting those goods to the seller’s place of business, unless the fact that the consumer must advance those costs constitutes such a burden as to deter him from asserting his rights . If the remedies are impossible or disproportionate, or the seller cannot implement this remedy within a reasonable period or without significant inconvenience to the consumer, the latter may then require an appropriate reduction of the price or have the contract rescinded , unless the lack of conformity is minor. Where the consumer has chosen to have the goods replaced, Article 3 prevents the seller from requiring compensation for the use of those goods . In effect, imposing a financial burden, even a small one, to the consumer might dissuade him from asserting his rights . Thus, where a consumer has installed a good which lacks conformity, before any defect appears and in accordance with its nature and the use sought, the seller must either remove the good from the place where it is installed and install the replacement good, or bear the cost of removal and replacement . The seller, which alone is liable with respect to the consumer for any lack of conformity existing when the goods are delivered, however, has a right of redress when the lack of conformity results from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, under the rules of his national law (Article 4). By virtue of Article 5 of the directive, the liability of the seller is incurred only if the lack of conformity becomes apparent within two years as from the delivery of the goods. Furthermore, the lacks of conformity which become apparent within six months of delivery of the goods are presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity. In order to benefit from his rights, the consumer must inform the seller of the lack of conformity within a period of two months from the date on which he detected such lack of conformity (Article 5(2)). Thus, a national rule may, without infringing EU law, provide that the consumer must inform the seller of the lack of conformity in good time, provided that that consumer has a period of not less than two months from the date on which he detected that lack of conformity to give that notification, that the notification to be given relates only to the existence of that lack of conformity and that it is not subject to rules of evidence which would make it impossible or excessively difficult for the consumer to exercise his rights . Further, any lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity (Article 5(3)) . For the presumption to apply, the consumer must furnish the evidence that the goods sold are not in conformity with the contract and that the lack of conformity in question became apparent within six months of delivery of the goods but the proof of cause of that lack of conformity or that its origin is attributable to the seller is not required. The presumption may be discounted only if the seller proves satisfactorily that the cause or origin of that lack of conformity lies in circumstances which arose after the delivery of the goods .

Beyond the uniform guarantee, the seller may have undertaken under the contract to guarantee the delivered goods. The guarantee is defined in Article 1(2)(e) as “any undertaking by a seller or producer to the consumer, given without extra charge, to reimburse the price paid or to replace, repair or handle consumer goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising”. This definition only covers the commercial guarantees, negotiated by the parties, referred to in Article 6, pursuant to which the conditions laid down in the guarantee statement and the associated advertising must be legally binding on the seller who has offered that guarantee. The guarantee must state the rights that the consumer may claim under applicable national legislation governing the field; make clear that those rights are not affected by the guarantee and set out in plain intelligible language the contents of the guarantee and the essential particulars necessary for making claims under the guarantee, notably its duration and territorial scope as well as the name and address of the guarantor (Article 6(1)). The guarantee must be made available to the consumer in writing or in any other durable medium available and accessible on his request (Article 6(2)). The consumer must be able to rely on the commercial guarantee, even if it infringes the requirements of the directive applicable in case of non-compliance (Article 6(5)).

Directive No 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L 171 of 7 July 1999, 12.

Case C-32/12 Soledad Duarte Hueros, Judgment of 3 October 2013, LawLex201300001443JBJ.

Case C-497/13 Froukje Faber, cited above.

Case C-497/13 Froukje Faber, Judgment of 4 June 2015, LawLex201500000691JBJ. 

Case C-52/18 Christian Fülla, Judgment of 23 May 2019, LawLex201900001286JBJ.

Case C-52/18 Christian Fülla, Judgment of 23 May 2019, LawLex201900001286JBJ: where the consumer informs the vendor of the non-conformity of goods acquired under a distance contract and makes the goods available to the vendor at his home for them to be brought into conformity, as their transport  to the seller’s place of business is likely to cause a significant inconvenience to him, he is entitled to rescission of the contract as a result of the failure to compensate him within a reasonable time, if the seller has failed to take any adequate steps to bring those goods into conformity, including that of informing the consumer of the place where those goods are to be made available to it for it to bring them into conformity. 

Case C-404/06 Quelle [2008] ECR I-2685, LawLex200900000708JBJ.

Cf., regarding distance selling, Case C-489/07 Messner [2009] ECR I-7315, LawLex201100000388JBJ: although the exercise of the withdrawal right offered to the consumer cannot generally be subject to the payment of a compensation for the use of a good that has been purchased, nothing prevents that such an indemnity be provided where the goods are used in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment, provided that it does not challenge the effectiveness of the withdrawal right.

Joined Cases C-65/09 and C-87/09 Wittmer [2011], ECR I-5257.

Case C-497/13 Froukje Faber, Judgment of 4 June 2015, LawLex201500000691JBJ.

European Business Law

223. Directive No 1999/44

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

223. Directive No 1999/44

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise