Sale of consumer goods and associated guarantees
The rules framing the sale of consumer goods in the European Union (EU) guarantee a uniform minimum level of consumer protection. In particular, the rules ensure that consumers are protected in the event of goods not conforming to contract.
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.
The Directive is concerned with the legal guarantee and commercial guarantees.
The concept of legal guarantee relates to the legal protection of the purchaser in respect of defects in the goods acquired. This legal protection is rendered compulsory by the law and is not dependent upon the contract. The Directive hence establishes the principle of the conformity of the product with the contract.
The concept of commercial guarantee, on the other hand, calls upon the demonstration of the willingness of one person, the guarantor, who assumes personal liability for certain defects.
The Directive does not use the terminology of legal and commercial guarantee. Where the term "guarantee" is used, it 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".
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;
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. 7. However, the Directive applies to contracts for the supply of consumer goods to be manufactured or produced.
Contracts of sale
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.
The seller is liable to the consumer for any lack of conformity which exists when the goods are delivered to the consumer and which arises within a period of two years from delivery. However, the lack of conformity cannot be accepted if, at the moment of conclusion of the contract of sale, the consumer knew or could not reasonably have been unaware of the lack of conformity.
If the goods are not in conformity with the public statements made by the seller, the producer or their representative, the seller will not be liable if they show that:
- they did not know and could not reasonably know the statement in question;
- they corrected the statement at the time of sale;
- 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 their 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.
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.
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;
- for an appropriate reduction to be made to the price, or for the contract to be rescinded, 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.
The contract cannot be rescinded if the lack of conformity is minor.
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.
Compliance with the commercial guarantee
Any commercial guarantee offered by a seller or producer is legally binding upon them under the conditions laid down in the guarantee document and the associated advertising. The guarantee must state that the consumer also has statutory rights and clearly state that these rights are not affected by the guarantee. Furthermore, the guarantee must state its content, in simple and understandable terms, and indicate the conditions for claiming under it, notably its duration and territorial scope and the name and address of the guarantor.
At the consumer’s request, the guarantee shall be made available in writing or in the form of another durable medium. 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.
Other consumer protection provisions
Any contractual terms or agreements concluded with the seller which directly or indirectly waive or restrict the rights created by the Directive are not binding on the consumer.
Member States may adopt more stringent provisions, compatible with the Treaty, to ensure a higher level of consumer protection.
This Directive is based on the 1993 Commission Green Paper on guarantees for consumer goods and after-sales services.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 171 of 7.7.1999
- The website of the European Commission, Directorate-General for Health and Consumers.