III. DETAILED COMMENTS ON THE ARTICLES
ARTICLE 1
The definitions in Article 1 broadly outline the scope of the
Directive by linking the criterion of the contracting parties
(contracts concluded between professionals and consumers) and
the criterion of the subject of the contract (consumer goods).
Paragraph 2(a)
The definition of the consumer is inspired by the classical definitions
already contained in other Directives. All sales of consumer goods
by a professional seller to a private individual are covered by
the proposal provided the latter is not acting in the course of
business.
Paragraph 2(b)
As suggested in the Green Paper, immoveables are excluded. However,
the definition of consumer goods is not limited to new and durable
goods. Most of the replies to the Green Paper argued that such
a restriction would be unwise. Moreover, national laws do not
distinguish between these types of goods in the context of the
legal guarantee. It would also be very difficult to define what
exactly is meant by a durable good: should it be defined as one
that is destroyed by use (entirely or partly?), as one that can
only be used for determinate (short?) period, etc? Anyhow, the
rules provided for in this proposal can quite readily be adapted
to accommodate different types of goods.
Paragraph 2(c)
The proposal covers only sales by professional sellers. Hence,
private sales are completely outside its scope and remain fully
subject to the applicable national rules.
Paragraph 2(d)
This paragraph defines what in the Green Paper was called the
"commercial guarantee". It covers all commercial guarantees
independently of the offerer. It also covers commercial guarantees
offered against payment and extended warranties provided against
payment over and above free guarantees. This definition is directly
linked to Article 5 of this proposal and recalls that guarantees
must always place the beneficiary in a more advantageous position
than that resulting from the national provisions governing the
sale of consumer goods.
ARTICLE 2
Article 2 lays down the straightforward principle that the goods
must be in conformity with the contract. This groundrule will
make it possible to cover a whole range of situations, not just
the criterion of "conformity with the consumer's legitimate
expectations" as suggested in the Green Paper. Although it
has been very warmly welcomed by consumer advocates, professional
circles take a dim view of this criterion.
Paragraph 1
The principle of conformity with the contract may also be considered
as common to different national legal traditions. Conformity with
the contract is also the criterion enshrined by the Vienna Convention
of 1980 on the international sale of goods between professionals.
Conformity with the contract derives not only from conformity
with the express terms of the contract, but also from conformity
with certain criteria laid down in the second paragraph. In continental
legal systems the criteria may be considered as imperative rules
applicable to contracts governing the sale of consumer goods,
while in common law systems they may be seen as part of the notion
of "implied terms" of the contract which the parties
cannot waive.
In conformity with the most modern legal systems (the new Netherlands
Civil Code, legislation in the Nordic countries) and the Vienna
Convention, the traditional distinction in certain legal orders
between the obligation to deliver and the legal guarantee covering
hidden defects is abandoned and replaced by the new and shared
concept of conformity of the goods with the contract. The theoretical
and practical difficulties engendered by this distinction can
clearly be seen in French case law which, over the years, has
oscillated between conflating and distinguishing these two notions,
without coming to any definitive conclusion.
Paragraph 2
Different elements, explicating the principle of conformity, have
been taken into account in this paragraph in the light of different
national traditions. The wording was to a large degree inspired
by Article 35(2) of the Vienna Convention.
Paragraph 3
The Green Paper discussed the possibility of extending the rules
governing the legal guarantee to services associated with goods
(installation, repair, maintenance, etc.). Most of the responses
were favourable. However, the Commission considers that the complexity
and diversity of services do not lend themselves to a simple extension
to services of rules governing the sale of goods. On the other
hand, as regards the installation of goods linked to the sale,
this extension is unproblematic and even necessary since in practice
it is difficult to distinguish between the two and because it
is necessary to protect the consumer consistently.
ARTICLE 3
Paragraph 1
The first sentence of paragraph 1 stipulates the seller's liability
for lack of conformity and also specifies the moment at which
conformity of the goods with the contract is to be determined.
It is based directly on Article 36(1) of the Vienna Convention
but - contrary to this Convention and the law of certain Member
States - it provides that conformity be assessed the moment the
consumer receives the good and not at the time the contract is
concluded. This seems to be the only appropriate solution in transactions
involving consumers. The overwhelming majority of replies to the
Green Paper were agreed on this point.
When the consumer knew of or could not have been unaware of the
lack of conformity at the time of purchase (i.e., a patent defect
present in the good which the consumer has examined prior to purchase),
there is strictly speaking no lack of conformity with the contract
because the consumer has accepted the good as such and so it will
be "in conformity with the contract". Exclusion of the
seller's liability would therefore in these cases already ensue,
in principle, simply from applying the concept of conformity with
the contract. Nevertheless, it seemed preferable to provide a
specific reference to this solution.
The period of two years seems to be an adequate compromise between
the periods laid down by the different Member States.
Paragraph 2
The purpose of paragraph 2 is to restrict the seller's liability
for public statements made by third parties, the conformity criterion
referred to in Article 2(2)(d). The seller may waive liability
for all the cases referred to in each indent.
Paragraph 3
Generally, definition of rules governing the burden of proof is
a national prerogative. According to the traditional rules governing
proof, it will normally be up to the consumer to prove that the
non-conformity of the good with the contract already existed,
at least in embryonic form, at the time he received the good.
However, when the non-conformity arises from the existence of
a defect which does not become manifest until later (and sometimes
very much later), it is well-nigh impossible for consumers to
prove that the defect existed at the time they received the good.
Generally, it is far easier for the professional to demonstrate
that the lack of conformity was not present at the time of delivery
and that it resulted, for example, from improper handling by the
consumer. This is why over the years case law in several Member
States has tended to reverse the burden of proof in the case of
goods purchased by consumers from professionals. Hence this paragraph
provides for a partial reversal of the burden of proof as regards
the moment of the existence of the lack of conformity in favour
of the consumer for a short period of six months after delivery.
Paragraph 4
When the lack of conformity is non-trivial, the consumer may choose
between the four traditional remedies; reimbursement or reduction
of the price, replacement or repair of the good. These four remedies
are also provided for in the Vienna Convention and in the most
modern national legislations. More traditional systems allow only
the first two remedies: to add the latter two would certainly
help bring the law more into line with economic realities.
The first remedy (cancellation of the contract with return of
the good and reimbursement of the price) is normally challenged
by professionals who often think that it should be excluded when
the good can be repaired or exchanged. This corresponds to economic
and social realities: the consumer, unless he has lost confidence
in the product or seller, is normally happy to exchange the product
or have it repaired. However, the remedy should be retained because:
-- given the broad notion of lack of conformity, this remedy
is the only appropriate one in certain cases;
-- it is a good way for consumers to exercise pressure in
order to ensure that the product is repaired or exchanged at the
earliest opportunity;
-- it is the classical remedy found in all legal traditions.
There is no reason to fear that consumers will abuse this remedy.
First, when a refund is not sought within a short period following
sale, the amount reimbursed will normally be reduced so as to
take into account the value of the use of the good by the consumer.
Secondly, the consumer must purchase a new good to replace the
one he has returned to the professional. Finally, the experience
of sellers who sell on a "satisfaction or money back"
basis show that consumers normally behave reasonably. In this
context, it should be remembered that even motor cars have been
sold on a "satisfaction or money back" basis within
a one-month period.
The guarantee period is two years (paragraph 1), as in the Vienna
Convention. However consumers may not pursue all the remedies
at their disposal throughout this period: the right to rescind
the contract and to have the good replaced applies only during
the first year following delivery.
This differential solution is based on the idea that recission
and replacement are remedies which, as time passes, become increasingly
inappropriate as the period of use grows longer. Moreover, it
is envisaged as a compromise to accommodate the traditions of
the common law counties which have quite a long guarantee period
(six years) for seeking damages, but where consumers are entitled
to replacement and refunds only for quite a short period.
Again with an eye to compromise and in order to accommodate different
national traditions, Member States are allowed to limit the consumer's
options in the case of a minor lack of conformity.
Paragraph 5
National provisions governing sales between professionals are
normally less strict than those governing sales between a professional
and a consumer. Thus, sellers may often include in these contracts
clauses disclaiming their liability for the legal guarantee. These
clauses will also be valid under Community law, because the scope
of Directive 93/13/EEC on unfair terms is limited to contracts
concluded between "a seller or supplier and a consumer".
This situation may also create an injustice in that the entire
liability for defects ultimately resulting from an act of commission
or omission on the part of another party falls upon the final
sellers. This is notably the case as regards manufacturing defects,
defects caused by improper handling on the part of an intermediary
or indeed any lack of conformity resulting from the statements
referred to in Article 2(2)(b).
Although this proposal for a Directive concerns the sale of goods
to the final consumer, it is also necessary to include a provision
granting the final seller the right to pursue remedies against
those responsible so that he can recover the costs caused by defects
which can be imputed to them. The procedures for pursuing remedies
are to be regulated by national law.
ARTICLE 4
Article 5 provides for a period which starts to run the moment
the lack of conformity is discovered, and compliance with which
is a formal condition for exercising the rights granted in the
preceding Articles.
Paragraph 1
The obligation on the buyer to notify the seller of any lack of
conformity within a certain period following discovery of the
defect already exists in certain countries (Denmark, Sweden, Finland,
Italy, Luxembourg, the Netherlands, Portugal) and is also enshrined
in Article 39(1) of the Vienna Convention. This obligation reinforces
legal certainty and encourages diligence on the part of the buyer,
taking the seller's interests into account.
As in the Vienna Convention, the period begins to run from the
moment the consumer detects or ought normally to have detected
the lack of conformity. The last sentence makes it incumbent on
the consumer to take normal care in examining the goods after
reception, but does not establish a strict obligation to carry
out a detailed inspection of the good or to conduct tests to evaluate
its functioning or performance.
Paragraph 2
The choice of a single period, at once procedural and substantial,
means that the limitation period must be frozen once the notification
provided for in paragraph 1 has been brought. Unless this principle
is enshrined, consumers would be forced to bring legal proceedings
so as not to forfeit their rights, hence discouraging speedy and
amicable settlement between the professional and the consumer.
The detailed procedures governing this interruption (notably as
regards the moment the limitation period begins to run again)
are laid down by national law.
ARTICLE 5
Paragraph 1
This paragraph establishes the principle, which seems self-evident,
that any guarantee legally binds the guarantor in accordance with
the conditions laid down in the guarantee document. This does
not imply any legal qualification in respect of the guarantee
(contract, unilateral promise, etc.), which could also vary depending
on the person of the guarantor and national legal traditions.
This paragraph, however, also gives guarantee references in advertising
the same status as actual guarantee conditions. In reality, consumers
never have access to guarantee documents prior to purchase. Hence,
the only contact the consumer has with guarantees is through advertising.
It is on the basis of advertising pertaining to guarantees that
the consumer's confidence and expectations are built up. Thus,
advertising statements must be looked on as an integral part of
the guarantee conditions. A similar principle was also established
at Community level in the context of Directive 90/314/EEC of 13
June 1990 on package travel, package holidays and package tours,
Article 3(2) of which prescribes that "[t]he particulars
contained in the brochure are binding on the organiser or retailer
. . ."
This paragraph thus establishes the principle that guarantees
must put the consumer in a more advantageous position than that
resulting from the arrangements established by the national rules
applicable. It is not necessary that all features of the commercial
guarantee offered should go beyond the national rules applicable;
it is enough that the consumer's position should be improved in
some respect.
Paragraph 2
To ensure transparency and adequate information of consumers,
all guarantees must be in writing and contain certain minimum
particulars. However, when a guarantee infringes the rules, just
as when it infringes Article 5(1), this should not in any way
affect the guarantee's validity: the consumer may still rely on
the guarantee and require that it be honoured. But Member States
must take effective measures to prevent such guarantees from being
offered, to ensure that the objectives are achieved and to reduce
sources of potential disputes.
In order to ensure absolute transparency, this paragraph also
establishes the right that consumers who wish to do so shall be
free to consult the guarantee documents before purchasing goods.
ARTICLE 6
Paragraph 1
Paragraph 1 is a "classical" provision designed to enshrine
the imperative nature of the rules contained in this proposal
in favour of the consumer. These rules may not be waived, even
with the consumer's consent.
Paragraph 2
A similar provision already features in Directives 93/13/EEC (unfair
terms) and 94/47/EEC (timeshares).
ARTICLE 7
Paragraph 1
As is clear from the text of the proposal and explained at length
in the Explanatory Memorandum, the Commission's intention in presenting
this proposal is to cover only a very limited number of the questions
raised by the sale of consumer goods. As far as lack of conformity
is concerned, the aim of the Commission, fully in keeping with
the principle of proportionality, is merely to resolve, by the
means established by Article 4, the problems relating to the goods
themselves as a result of such lack of conformity. The general
(and of course specific) provisions of national law normally go
much further and in some cases extend the liability of the seller
(or other parties, e.g., the producer) to include other harms
done to the consumer as result of lack of conformity. This may
cover a carpet damaged by a faulty cleaner, or the cost of hiring
a replacement car, etc. This proposal is, of course, without prejudice
to the cumulative application of such national provision.
Paragraph 2
This is a traditional provision in the context of consumer protection
directives.
ARTICLE 8
Since the proposal for a Directive mainly concerns the legal guarantee,
and since it is restricted to prescribing a minimum common corpus
of consumer rights, a transposition period of two years seems
adequate.
