CONTRACTS

Sale of consumer goods and associated guarantees

1) OBJECTIVE

Ensure consumer protection and strengthen consumer confidence in cross-border shopping by laying down a common set of minimum rules valid no matter where the goods are purchased.

2) COMMUNITY MEASURES

Directive 99/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees.

3) CONTENTS

1. The Directive is concerned with the legal guarantee and commercial guarantees.

The concept of legal guarantee includes all legal protection of the purchaser in respect of defects in the goods acquired, resulting directly from the law, as a collateral effect of the contract of sale. The Directive hence concerns the principle of the conformity of the product with the contract.

The concept of commercial guarantee, on the other hand, expresses the will of one person, the guarantor, who assumes personal liability for certain defects. The Directive does not use the terminology of legal and commercial guarantee. The term "guarantee" thus covers only commercial guarantees which are defined as follows: "any additional undertaking given by a seller or producer, over and above the legal rules governing the sale of consumer goods, to reimburse the price paid, to exchange, repair or handle a product in any way, in the case of non-conformity of the product with the contract".

2. Consumer goods are defined as any tangible movable item, with the exception of:

• goods sold by way of execution or otherwise by authority of law,
• water and gas where they are not put up for sale in a limited volume or set quantity,
• electricity.

Member States may exclude from this definition second-hand goods sold at public auction where consumers have the opportunity of attending the sale in person.

However, the Directive applies to contracts for the supply of consumer goods to be manufactured or produced.

3. Consumer goods must be in conformity with the contract of sale.

Goods are deemed to be in conformity with the contract if, at the moment of delivery to the consumer:

• they comply with the description given by the seller and possess the qualities of the product which the seller has held out to the consumer as a sample or model;
• they are fit for the purposes for which goods of the same type are normally used;
• they are fit for any particular purpose for which the consumer requires them and which was made known to the seller at the time of conclusion of the contract, and accepted by the seller;
• their quality and performance are satisfactory, given the nature of the goods and taking into account the public statements made about them by the seller, the producer or his representative.

4. The seller is liable to the consumer for any lack of conformity which exists when the goods are delivered to the consumer and which becomes apparent within a period of two years unless, at the moment of conclusion of the contract of sale, the consumer knew or could not reasonably be unaware of the lack of conformity.

5. If the goods are not in conformity with the public statements made by the producer or his representative, the seller will not be liable if:

• the seller shows that he did not know and could not reasonably know the statement in question;
• the seller shows that at the time of sale he corrected the statement;
• the seller shows that the decision to buy the goods could not have been influenced by the statement.

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. This applies equally if the product, intended to be installed by the consumer, is installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions.

6. Any lack of conformity becoming apparent within six months of delivery will be presumed to have existed at the time of delivery, unless:

• proof to the contrary is furnished;
• this presumption is incompatible with the nature of the goods or the nature of the lack of conformity.

7. When a lack of conformity is notified to the seller, the consumer will be entitled to ask:

• for the goods to be repaired or replaced free of charge within a reasonable period and without major inconvenience to the consumer;
• if repair or replacement is impossible or disproportionate, or if the seller has not remedied the shortcoming within a reasonable period or without major inconvenience to the consumer, for an appropriate reduction to be made to the price or to have the contract rescinded.

The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.

Member States may provide that, 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.

8. When the final seller is liable to the consumer because of a lack of conformity resulting from an act of commission or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller will be entitled to pursue remedies against the person responsible, under the terms of national law.

9. Any (commercial) guarantee offered by a seller or producer will be legally binding under the conditions laid down in the guarantee document and the associated advertising, and must place the beneficiary in a more advantageous position than that resulting from the rules governing the sale of consumer goods set out in the applicable national provisions. The guarantee must feature in a written document, which must be freely available for consultation before purchase, showing in particular the duration and territorial scope of the guarantee, and the name and address of the guarantor.

At the consumer's request, the guarantee shall be made available in writing or on another durable medium available and accessible to him. Within its own territory, the Member State in which the consumer goods are marketed may provide that the guarantee be drafted in one or more official languages of the Community.

Non-conformity of the (commercial) guarantee with the provisions of the Directive does not affect its validity and the consumer may still require that the guarantee be honoured.

10. Any contractual terms or agreements concluded with the seller which directly or indirectly waive or restrict the rights resulting from the proposed Directive are not binding on the consumer.

11. Member States may adopt more stringent provisions, compatible with the Treaty, to ensure a higher level of consumer protection.

12. On 2006 at the latest, the Commission will present to the European Parliament and the Council a report on the application of the directive.

4) DEADLINE FOR IMPLEMENTATION OF THE LEGISLATION IN THE MEMBER STATES

01.01.2002

5) DATE OF ENTRY INTO FORCE (if different from the above)

07.07.1999

6) REFERENCES

Official Journal L 171, 07.07.1999

7) FOLLOW-UP WORK

In the context of the report on the application of the Directive, which the Commission must submit no later than 7 July 2006, the Commission must in particular examine the case for introducing the producer's direct liability.

8) COMMISSION IMPLEMENTATION MEASURES