DIRECTIVE 1999/44 / EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 May 1999
on certain aspects of the sale and guarantees of consumer goods
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
acting in accordance with the procedure referred to in Article 251 of the Treaty, having regard to the joint draft approved on 18 March 1999 by the conciliation committee (3),
(1) Whereas Article 153 (1) and (3) of the Treaty provides that the Community must ensure a high level of consumer protection by means of the measures which it adopts in application of Article 95;
(2) Whereas the internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured; whereas the free movement of goods concerns not only professional trade, but also purchases made by individuals; whereas it implies that consumers residing in a Member State can obtain their supplies freely in the territory of another Member State on the basis of a common minimum basis of fair rules governing the sale of consumer goods;
(3) Whereas the laws of the Member States relating to the sale of consumer goods present certain disparities, with the consequence that national consumer goods markets differ from each other and that distortions of competition may exist between sellers;
(4) Whereas the consumer who seeks to benefit from the large market, by purchasing goods in a Member State other than that of his residence, plays a fundamental role in the completion of the internal market; whereas the artificial reconstruction of borders and the partitioning of markets should be prevented; whereas the possibilities open to the consumer are greatly increased by the new communication technologies which allow easy access to distribution systems existing in other Member States or in third countries; whereas, in the absence of minimum harmonization of the rules relating to the sale of consumer goods,
(5) Whereas the creation of a common minimum set of rules of consumer law, valid regardless of the place of sale of goods in the Community, will strengthen consumer confidence and allow them to make the most of the market interior;
(6) Whereas the main difficulties encountered by consumers and the main source of disputes with sellers concern the non-conformity of the goods with the contract; whereas it is therefore necessary to approximate on this point the national laws relating to the sale of consumer goods, without however prejudicing the provisions and principles of national law relating to contractual and extra-contractual liability regimes;
(7) Whereas the goods must, above all, comply with the contractual stipulations; that the principle of conformity with the contract can be regarded as common to the various national legal traditions; whereas, in some national legal traditions, it is not always possible to rely on this principle alone in order to ensure a minimum level of consumer protection; whereas, particularly within the framework of these legal traditions, additional national provisions may be useful to ensure consumer protection when no specific clause has been agreed between the parties or when they have provided for clauses or concluded agreements which , directly or indirectly, override or limit the rights of the consumer; than,
(8) Whereas, in order to facilitate the application of the principle of conformity with the contract, it is useful to introduce a rebuttable presumption of conformity with the contract covering the most common situations; that this presumption does not restrict the principle of contractual freedom; that, moreover, in the absence of specific contractual clauses as well as in the event of application of the minimum protection clause, the elements mentioned in the presumption can be used to determine the lack of conformity of the good with the contract ; that the quality and the services which the consumer can reasonably expect will depend, among other things, on whether the good is new or second-hand; that the elements mentioned in the presumption are cumulative;
(9) Whereas the seller should be directly responsible, vis-à-vis 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 the seller should nevertheless be able, under the applicable national law rules, to take action against the producer, a previous seller placed in the same contractual chain or any other intermediary, unless he has waived this right; whereas this Directive does not affect the principle of contractual freedom between the seller, the producer, a previous seller or any other intermediary; whereas national law determines the rules establishing against whom the seller can turn and how he can do so;
(10) Whereas, in the event of non-conformity of the good with the contract, consumers should have the right to have the good delivered in conformity with the contract, free of charge, with the choice between repair or replacement, or , failing this, should be entitled to a reduction in the price or to the termination of the contract;
(11) Whereas, in the first place, the consumer can demand from the seller that he repair the good or replace it, unless these methods of compensation are impossible or disproportionate; that the disproportionate nature of the compensation method must be determined objectively; whereas a mode of compensation is disproportionate if it imposes unreasonable costs in relation to the other mode of compensation; that in order for costs to be considered unreasonable, they must be considerably higher than those of the other form of compensation;
(12) Whereas, in the event of a lack of conformity, the seller can always offer the consumer, as an amicable solution, any of the existing compensation methods; whereas it is up to the consumer to decide whether to accept or reject this proposal;
(13) Whereas, in order to enable consumers to take advantage of the internal market and to purchase consumer goods in another Member State, it is recommended that in the interests of consumers, producers of consumer goods marketed in more than one Member States shall attach to their products a list indicating at least one contact address in each Member State where the product in question is marketed;
(14) Whereas references to the date of issue do not imply that Member States have to modify their rules on the transfer of risk;
(15) Whereas Member States may provide that any reimbursement to the consumer may be reduced to take account of the use which the consumer has had of the good since it was delivered to him; whereas the arrangements for terminating the contract may be determined by national law;
(16) Whereas the specific nature of second-hand goods generally makes it impossible to replace them; whereas, therefore, the consumer’s right to replacement is generally not possible for these goods; whereas, for such goods, Member States may allow the parties to agree on a shorter period of liability;
(17) Whereas the period during which the seller is liable for any lack of conformity existing at the time of delivery of the goods should be limited in time; whereas Member States may also provide for a limitation of the period during which consumers are authorized to exercise their rights, provided that this period does not expire during the two years following delivery of the goods; that, where, under the terms of national law, a limitation period does not begin at the time of delivery of the goods, the total duration of the limitation period provided for by national law may not be less than two years from the date of delivery of the goods, deliverance;
(18) Whereas Member States may provide that the period during which any lack of conformity must become apparent and the limitation period are suspended or interrupted, where appropriate and in accordance with their national legislation, in the event of repair, replacement or negotiations between the seller and the consumer with a view to an amicable agreement;
(19) Whereas Member States should be allowed to fix a period during which the consumer is required to inform the seller of any lack of conformity; whereas Member States can ensure a higher level of consumer protection by not introducing such an obligation; whereas consumers throughout the Community should in any event have at least two months to inform the seller of the existence of a lack of conformity;
(20) Whereas Member States should ensure that such a period does not disadvantage consumers who buy across borders; whereas they should notify the Commission of the manner in which they are implementing this provision; whereas it is important for the Commission to monitor the effects on consumers and on the internal market of these various implementations; whereas information on how a Member State implements this provision should be accessible to other Member States, as well as to consumers and consumer organizations throughout the Community; whereas a summary of the situation in the Member States should therefore be published in the Official Journal of the European Communities;
(21) Whereas, as regards certain categories of goods, it is common practice for sellers or producers to offer guarantees on the goods against any defect which would appear within a given period; whereas this practice can stimulate competition; whereas, although these guarantees are legitimate marketing tools, they must not mislead the consumer; whereas, in order to ensure that the consumer is not misled, guarantees must contain certain information, in particular a statement that the guarantee does not infringe the legal rights of the consumer;
(22) Whereas the parties cannot, by mutual agreement, limit or exclude the rights granted to consumers, under penalty of voiding legal protection of its content; whereas this principle should also apply to clauses which imply that the consumer was aware of all the lack of conformity of the consumer good which existed at the time of the conclusion of the contract; whereas the protection granted to consumers under this Directive should not be reduced on the grounds that the law of a non-Member State has been chosen as the law applicable to the contract;
(23) Whereas the legislation and case-law in this field show, in the various Member States, a growing concern to ensure a high level of consumer protection; whereas, in the light of this development and of the experience acquired in the implementation of this Directive, it may prove necessary to consider further harmonization, in particular by providing for direct liability of the producer for defects which are attributable to him;
(24) Whereas Member States should be able to adopt or maintain more stringent provisions in the field governed by this Directive with a view to ensuring an even higher level of consumer protection;
(25) Whereas, according to the Commission recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (4), the Member States may set up bodies which guarantee an impartial and effective treatment of complaints, in a national and cross-border framework, and which the consumer can use as a mediator;
(26) Whereas, in order to protect the common interests of consumers, this Directive should be added to the list of Directives set out in the Annex to Directive 98/27 / EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumer interests (5),
HAVE ADOPTED THIS DIRECTIVE:
Scope and definitions
1. The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to certain aspects of the sale and guarantees of consumer goods, by with a view to ensuring minimum uniform consumer protection within the framework of the internal market.
2. For the purposes of this Directive:
a) “consumer” means any natural person who, in contracts covered by this Directive, acts for purposes which are not part of his professional or commercial activity. ;
b) “consumer good”: any tangible movable object, except:
– goods sold by seizure or in any other way by judicial authority,
– water and gas when they are not packaged in a defined volume or in a determined quantity,
(c) “seller”: any natural or legal person who, by virtue of a contract, sells consumer goods in the course of his professional or commercial activity;
d) “producer”: the manufacturer of a consumer good, the importer of a consumer good in the territory of the Community or any person who presents himself as a producer by affixing his name, his trademark to the consumer good or another distinctive sign;
e) “guarantee”: any commitment of a seller or a producer towards the consumer, given at no additional cost, to reimburse the price paid, or to replace, repair or take care of a in any way whatsoever if it does not meet the conditions set out in the guarantee statement or in the related advertising;
f) “repair”: in the event of a lack of conformity, placing the consumer good in a state conforming to the contract.
3. Member States may provide that the concept of “consumer good” does not include second-hand goods sold by public auction, where consumers have the possibility of personally participating in the sale.
4. For the purposes of this Directive, contracts for the supply of consumer goods to be manufactured or produced are also deemed to be contracts of sale.
Conformity with the contract
1. The seller is bound to deliver goods to the consumer which conform to the contract of sale.
2. The consumer good is presumed to conform to the contract:
a) if it corresponds to the description given by the seller and possesses the qualities of the good which the seller has presented in the form of a sample or model to the consumer;
b) if it is suitable for any special use sought by the consumer, which the latter made known to the seller at the time of the conclusion of the contract and which the seller has accepted;
(c) if it is fit for the purposes for which goods of the same type are ordinarily used;
d) if it presents the quality and the usual performances of a good of the same type which the consumer can reasonably expect, having regard to the nature of the good and, where appropriate, taking into account the public statements made on the characteristics of the good by the seller, by the producer or by his representative, in particular in advertising or labeling.
3. The lack of conformity is deemed not to exist within the meaning of this article if, at the time of the conclusion of the contract, the consumer knew, or could not reasonably have been unaware of, this defect, or if the lack of conformity has its origin in the materials supplied by the consumer.
4. The seller is not bound by public declarations referred to in paragraph 2 (d) if he:
– demonstrates that he did not know, and was not reasonably able to know, the declaration in question ,
– shows that the declaration in question had been corrected at the time of the conclusion of the contract
– shows that the decision to buy the consumer good could not have been influenced by the declaration.
5. Any lack of conformity which results from improper installation of the consumer good is assimilated to the lack of conformity of the good when the installation forms part of the contract for the sale of the good and has been carried out by the seller or under his responsibility. This provision also applies when the good, intended for installation by the consumer, is installed by him and the faulty assembly is due to an error in the assembly instructions.
1. The seller is liable vis-à-vis the consumer for any lack of conformity which exists during the delivery of the goods.
2. In the event of lack of conformity, the consumer has the right either to the bringing of the good into a conforming condition, free of charge, by repair or replacement, in accordance with paragraph 3, or to an adequate reduction of the price or to the termination of the contract. with regard to this good, in accordance with paragraphs 5 and 6.
3. Initially, the consumer has the right to demand from the seller the repair of the good or its replacement, in both cases without charge, unless this is not impossible or disproportionate.
A compensation method is considered disproportionate if it imposes on the seller costs which, compared to the other mode, are unreasonable taking into account:
– the value that the good would have if there were no default conformity,
– the importance of the lack of conformity
– the question of whether the other mode of compensation can be implemented without major inconvenience for the consumer.
Any repair or replacement is carried out within a reasonable time and without major inconvenience for the consumer, taking into account the nature of the good and the use sought by the consumer.
4. The expression “free of charge” in paragraphs 2 and 3 means the necessary costs incurred for bringing the goods into a compliant state, in particular the cost of sending the goods and the costs associated with labor and material.
5. The consumer may demand an adequate reduction in the price or the termination of the contract:
– if he is not entitled to repair or replace the goods
– if the seller has not implemented the compensation method within a reasonable time
– if the seller has not implemented the compensation method without major inconvenience for the consumer.
6. The consumer is not entitled to request the termination of the contract if the lack of conformity is minor.
When the liability of the final seller is incurred vis-à-vis the consumer by virtue of a lack of conformity resulting from an act or omission of the producer, of a previous seller placed in the same contractual chain or of any other intermediary, the final seller has the right to take action against the responsible party (s) belonging to the contractual chain. National law determines the responsible party (s) against whom the final seller can take action, as well as the relevant actions and conditions of exercise.
1. The seller’s liability provided for in article 3 is engaged when the lack of conformity appears within two years from the delivery of the goods. If, under national law, the rights provided for in Article 3 (2) are subject to a limitation period, this period shall not expire during the two years following the grant.
2. Member States may provide that the consumer, in order to benefit from his rights, must inform the seller of the lack of conformity within two months of the date on which he found it.
Member States shall inform the Commission of how they implement this paragraph. The Commission is monitoring how the existence of this option for Member States affects consumers and the internal market.
By 7 January 2003 at the latest, the Commission shall draw up a report on the implementation by the Member States of this provision. This report is published in the Official Journal of the European Communities.
3. In the absence of proof to the contrary, the lack of conformity which appears within a period of six months from the delivery of the goods are presumed to exist at the time of delivery, except when this presumption is not compatible with the nature of the goods or the nature of the lack of conformity.
1. A guarantee must legally bind the person offering it according to the conditions set out in the guarantee declaration and in the related advertising.
2. The guarantee must:
– indicate that the consumer has legal rights under the national legislation in force governing the sale of consumer goods and clearly indicate that these rights are not affected by the guarantee,
– establish, in simple terms and understandable, the content of the guarantee and the essential elements necessary for its implementation, in particular its duration and its territorial scope, as well as the name and address of the guarantor.
3. At the request of the consumer, the guarantee is given to him in writing or in another durable medium, made available to him and to which he has access.
4. The Member State where the consumer good is marketed may, in compliance with the rules of the Treaty, require in its territory that the guarantee appears in one or more languages which it determines from among the official languages of the Community.
5. If a warranty goes against the requirements of paragraphs 2, 3 and 4, the validity of that warranty remains unaffected and the consumer can always rely on it to demand that it be honored.
1. Contractual clauses or agreements concluded with the seller, before the lack of conformity is brought to the latter’s attention and which directly or indirectly exclude or limit the rights resulting from this Directive, do not bind, under the conditions provided for by national law, the consumer.
Member States may provide that, in the case of second-hand goods, the seller and the consumer may agree on contractual terms or enter into agreements providing, for the seller’s liability, for a shorter period than that provided for in Article 5. , paragraph 1. This period may not be less than one year.
2. Member States shall take the necessary measures to ensure that the consumer is not deprived of the protection granted by this Directive by the choice of the law of a non-Member State as the law applicable to the contract, where the contract has a close link with the territory of the Member States.
National law and minimum protection
1. The rights resulting from this Directive shall be exercised without prejudice to other rights which the consumer may avail himself of under national rules relating to the law of contractual or extra-contractual liability.
2. Member States may adopt or maintain in force, in the field governed by this Directive, more stringent provisions compatible with the Treaty in order to ensure a higher level of consumer protection.
Member States shall take appropriate measures to inform consumers of the provisions of national law which transpose this Directive and, where appropriate, encourage professional organizations to inform consumers of their rights.
The annex to Directive 98/27 / EC is completed by the following point: “10. Directive 1999/44 / EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale and guarantees of consumer goods (OJ L 171, 7.7.1999, p. 12). “
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2002 at the latest. They shall forthwith inform the Commission thereof.
When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The modalities of this reference are decided by the Member States.
2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this Directive.
The Commission shall review the application of this Directive by 7 July 2006 at the latest and present a report to the European Parliament and to the Council. This report examines, in particular, the possible introduction of direct producer responsibility and is, where appropriate, accompanied by proposals.
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Directive is addressed to the Member States.
Done at Brussels, 25 May 1999.
For the European Parliament
For the Council
(1) OJ C 307, 16.10.1996, p. 8
OJ C 148, 14.5.1998, p. 12.
(2) OJ C 66, 3.3.1997, p. 5.
(3) Opinion of the European Parliament of 10 March 1998 (OJ C 104, 6.4.1998, p. 30), Council common position of 24 September 1998 (OJ C 333, 30.10.1998, p. 46) and decision of the Parliament European Union of 17 December 1998 (OJ C 98, 9.4.1999, p. 226). Decision of the European Parliament of 5 May 1999. Decision of the Council of 17 May 1999.
(4) OJ L 115, 17.4.1998, p. 31.
(5) OJ L 166, 11.6.1998, p. 51.