European Consumer Law

The Directive 1999/44/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 contains provisions which go to the 'heart' of contract law: Remedies for lack of conformity in sales contracts. It is perhaps for this reason that the directive was transposed in time by three member states only (Austria, Germany and Finland). The Commission brought actions under Art. 226 EC against France (C-311/03, cf. furthermore C 177/04), Luxembourg (C-310/03) and Belgium (C-312/03) for the failure to transpose the directive.

• Art. 1(2)(a) and (c) contain the typical definitions of the contractual partners.
• The directive applies to contracts for the sale of consumer goods; Art. 1(2)(b) defines consumer goods as any tangible movable item (with only a few exceptions).
• Following Art. 1(4), contracts for the supply of consumer goods to be manufactured or produced are also covered by the directive.

• Art. 2(1) stipulates (not surprisingly) that goods shall be in conformity with the contract of sale.
• Art. 2(2) gives an indication of when the goods can be considered in conformity with the contract, using a mix of objective and subjective criteria.
• Following Art. 2(5), incorrect installation shall be equivalent to a lack of conformity if the installation forms part of the contract or the installation instructions were provided to the consumer for the purpose of self-assembly.
• The buyer's constructive knowledge of a lack of conformity excludes the existence of a lack of conformity, Art. 2(3).
• Note that Art. 7 prohibits contractual agreements which directily or indirectly waive or restrict the consumer's rights; a contractual description of the goods may in some instances be equivalent to an indirect waiver and is therefore not binding under Art. 7(1).

• '4 Rs': repair, replacement, reduction in price, rescission of contract.
• Primary remedies are repair and replacement ('giving the seller a second chance'). However, (a) the Member States may provide otherwise (cf. Art. 8) and (b) the parties may agree otherwise.
• The consumer may not require repair or replacement if the remedy is impossible or disproportionate, Art. 3(3).
• The consumer may not demand a rescission of contract if the non-conformity is minor, Art. 3(6).

• Seller liable if lack of conformity becomes apparent within two years from the date of delivery, Art. 5(1).
• Member states may provide that 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, Art. 5(2) [roughly half the Member States made use of this option].
• Legal presumption that non-conformities which become apparent within 6 months of delivery already existed at the time the risk passed, Art. 5(3).

• Guarantees are legally binding, Art. 6(2).
• A guarantee shall set out its contents in plain intelligible language and shall clarify that the consumer's legal rights under the national legislation are not touched by the guarantee, Art. 6(2).
• Member States may provide for language requirements.

• Following Art. 4, the final seller shall be entitled to pursue remedies against the persons liable in the contractual chain. Details are left for the Member States to decide.