Proposal for a
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
on the sale of consumer goods and associated guarantees
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION
Having regard to the Treaty establishing the European Community,
and in particular Article 100a thereof.
Having regard to the proposal from the Commission.
Having regard to the opinion of the Economic and Social Committee.
Acting in accordance with the procedure referred to in Article
189b of the Treaty.
Whereas the internal market comprises an area without internal
frontiers in which the free movement of goods, persons, services
and capital is guaranteed; whereas free movement of goods concerns
not only persons acting in the course of a business but also private
individuals; whereas it implies that consumers resident in one
Member State should be free to purchase goods in the territory
of another Member State on the basis of a minimum set of fair
rules governing the purchase of consumer goods.
Whereas the laws of the Member States concerning the sale of consumer
goods are quite disparate, with the result that national consumer
goods markets differ from one another and that competition between
sellers may be distorted.
Whereas consumers who are keen to benefit from the large market
by purchasing goods in Member States other than their State of
residence play a fundamental role in the completion of the internal
market by preventing the artificial reconstruction of new frontiers
and the compartmentalisation of markets; whereas these opportunities
have been greatly broadened by new communication technologies
which allow ready access to distribution systems in other Member
States or at international level; whereas in the absence of minimum
harmonisation of the rules governing the purchase of consumer
goods, the development of the sale of goods through the medium
of new distance communication technologies risks being impeded.
Whereas the creation of a common minimum corpus of consumer law,
valid no matter where goods are purchased within the Community,
will further strengthen consumer confidence and enable consumers
to make the most of the internal market.
Whereas the main difficulties encountered by consumers and the
main source of disputes with sellers concern the non-conformity
of goods with the contract; whereas it is therefore appropriate
to approximate national legislation governing the sale of consumer
goods in this respect, without however impinging on provisions
and principles of national law relating to contractual and non-contractual
liability.
Whereas the goods must, above all, conform with the contractual
specifications; whereas the notion of conformity with the contract
may be considered as common to the different national legal traditions;
whereas the seller should be directly liable to the consumer for
the conformity of the goods with the contract; whereas this is
the traditional solution enshrined in the legal orders of the
Member States; whereas, nevertheless, the seller should be free
to pursue remedies against his own seller or the producer when
the non-conformity is the result of an act of commission or omission
on their part.
Whereas, in the case of non-conformity of the product with the
contract, consumers should be entitled to request that the product
be repaired or replaced, or to a reduction in the price paid by
way of damages or cancellation of the contract of sale; whereas,
however, exercise of these rights should be limited in time and
time-limits laid down during which these rights may be invoked
against the seller.
Whereas, in the interest of a stable business environment and
good faith in the relations between the contracting parties, it
should be incumbent on the consumer to notify the seller of any
non-conformity he detects within a short period; whereas in order
to allow the parties to reach amicable settlements without immediately
having to institute legal proceedings to safeguard their rights
the limitation period should be interrupted once the consumer
draws attention to the lack of conformity of the goods.
Whereas it is current practice, for certain categories of goods,
for sellers and producers to offer guarantees on their products
designed to insure consumers against any defect which becomes
manifest within a certain period; whereas this practice can stimulate
competition; whereas, however, these guarantees may be a simple
publicity ploy and deceive the consumer; whereas to ensure market
transparency certain common principles applicable to the guarantees
offered by the economic operators should be laid down.
Whereas the rights granted to consumers should not be excludable
by common consent between the parties since otherwise the legal
protection afforded would be vitiated; whereas consumers should
always be entitled to rely on the rights resulting from this Directive
or any other applicable national provision, even if they accept
the implementation of the guarantee; whereas consumer protection
resulting from this Directive should not be reduced on the grounds
that the law of a non-member country is applicable to the contract.
Whereas legislation and case law in this area in the various Member
States show that there is growing concern to ensure a high level
of consumer protection; whereas in the light of these trends and
the experience acquired in implementing this Directive it may
be necessary to envisage more far-reaching harmonisation, notably
by stipulating the producer's direct liability for defects for
which he is responsible.
Whereas Member States must be allowed to adopt or maintain in
force more stringent provisions, in the field covered by this
Directive, to ensure a yet higher level of consumer protection,
have adopted this directive.
Article 1: Scope and definitions
1. The purpose of this Directive is the approximation of the laws,
regulations and administrative provisions of the Member States
on the sale of consumer goods and associated guarantees in order
to ensure a uniform minimum level of consumer protection in the
context of the internal market.
2. For the purposes of this Directive:
(a) "Consumer" means any natural person who, in
the contracts covered by this Directive, is acting for purposes
which are not directly related to his trade, business or profession.
(b) "Consumer goods" means any goods, excluding
buildings, normally intended for final use or consumption.
(c) "Seller" means any natural or legal person who
sells consumer goods in the course of his trade, business or profession.
(d) "Guarantee" means 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.
Article 2: Conformity with the contract
1. Consumer goods must be in conformity with the contract of sale.
2. Goods shall be deemed to be in conformity with the contract
if, at the moment of delivery to the consumer:
(a) 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;
(b) they are fit for the purposes for which goods of the same
type are normally used;
(c) they are fit for any particular purpose for which the
consumer requires them and which he had made known to the seller
at the time of conclusion of the contract, except where the circumstances
show that the buyer did not rely on the seller's explanations;
(d) their quality and performance are satisfactory given the
nature of the goods and the price paid and taking into account
the public statements made about them by the seller, the producer
or his representative.
3. Any lack of conformity resulting from incorrect installation
of the goods shall be considered to be equivalent to lack of conformity
of the goods with the contract, if the goods were installed by
the seller or under his responsibility.
Article 3: Obligations of the seller
1. The seller shall be liable to the consumer for any lack of
conformity which exists when the goods are delivered to the consumer
and which becomes manifest within a period of two years unless,
at the moment of conclusion of the contract of sale, the consumer
knew or could not be unaware of the lack of conformity.
2. When the goods are not in conformity with the public statements
made by the producer or his representative, the seller shall 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; or
-- the seller shows that the decision to buy the goods could
not have been influenced by the statement.
3. Until proof of the contrary any lack of conformity which becomes
manifest within six months of delivery 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.
4. When a lack of conformity is notified to the seller, pursuant
to Article 4, the consumer shall be entitled to ask the seller
either to repair the goods free of charge within a reasonable
period, or to replace the goods, when this is possible, or to
demand an appropriate price reduction or rescission of the contract.
Exercise of the right of rescission or replacement of the good
is limited to one year.
Member States may provide that the scope of the rights referred
to in the first subparagraph be limited in the case of a minor
lack of conformity.
5. 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 shall be entitled
to pursue remedies against the responsible person, under the conditions
laid down by national law.
Article 4: Obligations of the consumer
1. In order to benefit from the rights referred to in Article
3(4) the consumer must notify the seller of any lack of conformity
within a period of one month from the date on which he detected
the lack of conformity or ought normally have detected it.
2. Notifications made pursuant to paragraph 1 shall interrupt
the limitation period provided for in Article 3(4).
Article 5: Guarantees
1. Any guarantee offered by a seller or producer shall legally
bind the offerer 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 national provisions
applicable.
2. The guarantee must feature in a written document which must
be freely available for consultation before purchase and must
clearly set out the essential particulars necessary for making
claims under the guarantee, notably the duration and territorial
scope of the guarantee, as well as the name and address of the
guarantor.
Article 6: Binding nature of the provisions
1. Any contractual terms or agreements concluded with the seller
before notification of the lack of conformity which waive or restrict
the rights resulting from this Directive shall not be binding
on the consumer.
2. Member States shall take the necessary measures to ensure that,
irrespective of the law applicable to the contract, and when the
contract has a close connection with the territory of the Member
States, consumers are not deprived of the protection afforded
by this Directive.
Article 7: National law and minimum protection
1. The rights resulting from this Directive shall be exercised
without prejudice to other rights which the consumer may rely
on under the national rules governing contractual or non-contractual
liability.
2. Member States may adopt or maintain in force more stringent
provisions, compatible with the Treaty, in the field covered by
this Directive, to ensure a higher level of consumer protection.
Article 8: Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this Directive
not later than [two years after its publication in the Official
Journal of the European Communities]. They shall immediately inform
the Commission thereof.
When Member States adopt these provisions, these shall contain
a reference to this Directive, or shall be accompanied by such
reference at the time of their official publication. The procedure
for such reference shall be adopted by Member States.
2. Member States shall communicate to the Commission the provisions
of national law which they adopt in the field covered by this
Directive.
Article 9: Entry into force
This Directive shall enter into force on the twentieth day following
that of its publication in the Official Journal of the European
Communities.
Article 10: Addresses
This Directive is addressed to the Member States.
Done at Brussels,
| For the European Parliament | For the Council
|
| The President | The President
|
