A.   EU-Directive 1999/44

The so called „European Consumer Goods Directive“ (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) has brought into conformity  minimum consumer warranty and guarantee rights within the EU member states like it is described in Art. 1.1.

The fact, that the legislative organ of the EU enacted a directive instead of a regulation means that this Directive has to be transposed into member states´ law. This necessity of transcription into national law does not mean that the same “Consumer Goods Law” is valid in all member states, but – considering the minimal standards established by this Directive - that there can be national differences.

The EU directive does not have a direct application within the member states. Nevertheless, the basic regulation of this Directive will be described in order to determine the national embodiment in a better way.

According to Art. 1.2 b) the scope of this Directive is limited to “consumer goods”, which shall mean any tangible movable items. Expressively excluded from this definition are goods sold by way of execution or otherwise by authority of law, water and gas where they are not put up for sale in limited volume or set quantity and electricity.

According to Art. 1.3 the member states may provide that the expression “consumer goods” does not cover second-hand goods sold at public auctions where consumers have the opportunity of attending the sale in person.

In case the good in question can be categorized as “consumer good” according to the Directive´s definition Art. 5.1 establishes that the seller (shall mean any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession) can be hold liable within a minimum of two years as from delivery of the goods that the delivered good is in conformity of the contract of sale. A specific presumption when such conformity with the contract of sale has to be estimated is established under Art. 2.2.

According to Art. 3.2 and Art. 3.3 in case of a lack of conformity the consumer shall be entitled to have the goods be brought into conformity free of charge by repair or replacement. Eventually the consumer may require an appropriate reduction of the price or have the contract rescinded, if the consumer is entitled to neither repair nor replacement, or if the seller has not completed the remedy within a reasonable time, or if the seller has not completed the remedy without significant inconvenience to the consumer (Art. 3.5). However, according to Art. 3.6, consumers are not entitled to have the contract rescinded if the lack of conformity is minor.

In the cases, when the lack of conformity becomes apparent within six months of delivery of the good, according to Art 5.3 it shall be presumed that this lack of conformity has already existed at the time of delivery. So the consumer did not have to give evidence about this and it is up to the seller to prove (e.g. based on a possible improper use of the good by consumer) the conformity of the good in the cases that the lack of conformity becomes apparent within this period of time.

As consequence the Directive established a shift of burden of prove within this six-months-period in favour of the consumer. Nevertheless, it has to be pointed out that this shift of burden of prove or this presumption unless it is incompatible with the nature of the goods or the nature of the lack of conformity

If the lack of conformity becomes apparent after six months, the consumer has to prove its existence at the moment of the sell.

However, for the calculation of this term and as a consequence of the awareness of warranty rights the decisive moment is not the date when the parties finalize the contract, but when the good is delivered to the consumer. This means, that the consumer has to have the good “in his hands” in order to initiate this legal presumption. However, due to the fact that the Directive regulates the warranty and guarantee of consumer goods, that means any tangible movable items. In the majority of the cases, the moment of delivery will be identical with the moment of finalizing the purchasing contract.

As already mentioned, this Directive establishes some minimum standards, which will be valid EU-wide. Therefore, the member states have also the possibility to legislate further (consumer friendly) rules, which especially would be relevant regarding the presumption established in Art. 5.3.

Furthermore it has to be pointed out, that the Directive establishes in Art. 5.2 the possibility that member states may provide, that in order to benefit from his rights, 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. This so called “period of reclamation” is an independent period of time within the warranty period. If a consumer detects a lack of conformity within this time period, he must inform the seller because otherwise he may lose his warranty rights.

A further alleviation is established in Art. 7.1 second paragraph where the member states are allowed to agree on contractual terms or agreements which have a shorter time period for the liability of than the established two years, but in every case not less than one year, when it concerns second-hand goods. However, according to Art. 7 first paragraph in general contractual terms or agreements concluded with the seller before the lack of conformity is brought to the seller´s attention which directly or indirectly waives or restricts the rights resulting from this Directive shall not be binding on the consumer.

Finally, the Directive establishes that guarantees of producer does not influence the warranty rights established in the Directive and that they shall be legally binding on the offerer according to conditions laid down in the guarantee statement and the associated advertising.

B.   Legislation of the (old) EU-Member States based on the EU-Directive

1.    Introduction

According to Art. 11 of the Directive the member states shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 January 2002. However, a transposition in this time period was only brought into force in Germany, Austria and Finland, whereas the other – then 12 member states – did not transpose the Directive in this time period. However, meanwhile the 15 (old) member states adopted all necessary laws, regulations and administrative provisions to comply with this Directive. Furthermore, the 10 new Member States were obliged to transpose this Directive without any transition period until the time period (1 May 2004), when they entered in the EU. They Member States which complied this obligation first were Poland, the Czech Republic, Hungary, Slovenia and Slovakia.

As a consequence of the fact, that the Directive “only” wanted to ensure a minimum level of consumer protection in the context of the internal market the Member States were allowed to agree on advanced (consumer friendly) regulation. Therefore, the upcoming description will describe the conformity and deviation of the different Member States regulation concerning the different aspects of the Directive. Furthermore,it shall also be exposed some particularities of some Member States legislation.

2.    Excluded consumer goods

Art. 1.2 b) of the Directive establishes a definition of “consumer goods” and enabled Member States to make exceptions for goods sold by way of execution or otherwise by authority of law, water and gas where they are not put up for sale in limited volume or set quantity and/or electricity.

Spain, Luxemburg, Italy, Ireland, Belgium, France and Germany adopted these exceptions, whereas Portugal, Sweden, Finland and Denmark did not adopt any of these exceptions.

Member States like Netherlands, Great Britain, Greece and Austria only adopted some of the exceptions. All of these four Member States exclude goods sold by way of execution or otherwise by authority of law from the definition. Great Britain furthermore excludes electricity meanwhile the Netherlands did not exclude electricity but water and gas where they are not put up for sale in a limited volume or set quantity.

Concerning the possibility to exclude second-hand goods sold at public auction where consumers have the opportunity of attending the sale in person, Spain Germany, Great Britain, Finland and France alsoadopt this from the Directive.

3.    Seller

Concerning the concept of the seller of a good described in Art. 1.2 c) all Member States follow this concept as seller shall mean any natural or legal person who, under a contract, sells consumer goods, in the course of his trade, business or profession.

Italy, Austria and Finland extend this definition also to public entities, whereas Sweden and Denmark establish some special rules. In these Member States the “consumer goods law” is also applicable even though the seller does not sell consumer goods in the course of his trade, but there is a middleman who sells the consumer goods in the course of his trade.

4.    Consumer

According to the definition of “consumer” established in Art. 1.2 a)

-                     legal persons

-                     Buyers acting for mixed targets (personal and professional),

-                     Buyers acting for purposes which are related to his trade, business and profession, and

-                     The second buyer of the good, as only the first buyer did have a contract with the seller

are not estimated as consumer. However, some Member States have extended this definition.

In Spain, Portugal and Greece also legal persons can be consumer. In Luxemburg, Italy, Sweden, Finland and Denmark the buyer who buys consumer goods with mixed targets is estimated as consumer. In Germany the buyer can alsoact for professional reasons and still be considered as a consumer, whereas in Austria this will only be possible if the buyer purchased the consumer good before he initiated his professional activity.

In the Netherlands the legislation extends the definition of consumer also to the second buyer, whereas this is also accepted by the jurisprudence in Luxemburg, France and Belgium. At this point in Spain and Greece instead of including the second buyer the corresponding legislations include the person where the good has its final destination.

5.    Conformity with the contract

According to Art. 2.1, the seller must deliver goods to the consumer which are in conformity with the contract of sale.

In Member States like Spain, Italy and Portugal this is a new principle, whereas in some Member States like Netherlands, Sweden, Finland and Denmark it has already existed. In Germany and Great Britain the content of this principle exists, but was not adopted expressly.

Some Member States legislations continuealludingtoterms like “defects” or “flaws” (vices) and not to “lack of conformity”. At this respect the Directive does not distinguish between the different terms and as consequence also some Member States, like Spain, Portugal, Greece, Ireland and Belgium do not, whereas other Member States like the Netherlands, Sweden, Finland and Denmark do so.

However there are some specific considerations:

-                     lack of “material” conformity

-                     the lack of delivery or the late delivery which is not a lack of conformity

-                     the delivery of a different good (aliud pro alio), quantity or quality defect, which is considered in the Netherlands, Germany, Sweden Finland and Denmark as lack of conformity

-                     a good which is not correctly or in a defective way, considered in Luxemburg, Sweden, Finland, Denmark and France

-                     legal “defects”, admitted in Austria, Sweden and Finland

Art. 2.2 of the Directive establishes a presumption of conformity and even though it does not express it literally this presumption will only be applicable in absence of an agreement of the parties. As a consequence, the criteria for the conformity with the contract are

-                     an agreement between the contractual parties

-                     and in its absence the subsidiary criteria of Art. 2.2

Some Member States, like Germany, Greece, Great Britain, Sweden, Finland, Denmark and France, establish in their corresponding legislation the existence of an agreement as first criteria for the conformity with the contract.

Apart from that, between the Member States there are differences in the interpretation of this presumption of conformity. Member States like Spain, Portugal, Italy, Greece and Ireland interpret that the good is in conformity with the contract, which means that it is not defective, which apparently would benefit the seller, whereas Luxemburg, the Netherlands, Germany, Austria, Great Britain, Sweden, Finland, Denmark, Belgium and France presume that the parties wanted that the good shall have certain characteristics, which would benefit the consumer.

However, the criteria established in the Directive havecumulative not-exclusive character and some Member States (Spain, Portugal, Luxemburg, Greece, Ireland, Belgium and France) adopted the same criteria, whereas other Member States find another solution.

In the Netherlands the general criteria is that the good should have the characteristics which the consumer can expect.

The German legislation establishes three criteria, regulated in a hierarchical scale (agreement between the contractual parties, the use of the good foreseen in the contract, purposes for which the good is normally used), whereas the legislation in Great Britain establishes four parameters for the conformity with the contract. Sweden established two additional criteria for this presumption of conformity considering the package of the good and a possible omission of the seller concerning relevant circumstances/conditions of the good.

Finally, Finland and Denmark establish different criteria like the packing and durability of the good, as well as the packing, the description given by the seller and a possible omission of relevant information by the seller.

Art. 2.2 d) of the Directive adopted the legislation of the Netherlands, Sweden and Denmark, where “any public statements on the specific characteristics of the good made about them by the seller, the producer or his representatives” have to be considered. Most of the Member States´ legislation copied this regulation, with more or less small amendments.

The Portuguese legislation, for example, defines the representative, whereas in Germany instead of “representatives” auxiliary personsare included. The Netherlands, Sweden and Finland just mention public statements, whereas Spain, Germany and Great Britain specially mention the publicity and the label.

Art. 2.4 furthermore establishes three exceptions, when the seller shall not be bound by public statements. So the seller is not bounded, if he

-                     shows that he was not, and could not reasonably have been, aware of the statement in question,

-                     shows that by the time of conclusion of the contract the statement had been corrected, or

-                     shows that the decision to buy the consumer goods could not have been influenced by the statement.

The majority of the Member States adopt this exceptions, whereas Luxemburg, Greece and France only adopt the first one, Denmark the second and third one and Portugal none of them.

6.    Defective installation

The Directive establishes in Art. 2.5 also a specific case of a lack of conformity with the contract concerning the installation of the good, which includes two assumptions. The first one is the defective installation by the seller, if this forms part of the contract of sale of the goods or the defective installation by the consumer if this is due to a shortcoming in the installation instruction.

Spanish, Portuguese, Italian, Austrian Greek, Irish and Belgium legislation copied this rule literally, whereas the other Member States introduces some modifications.

So in Germany, France and the Netherlands there is no reference to a shortcoming in the installation instruction, but to any circumstance resulting from the installation instruction which caused the defective installation, like a lack of clarity, omission of relevant facts, defective description.

In Sweden, Finland and Denmark the second assumption is pointed out and the corresponding law demands that the consumer good is accompanied by all the necessary installation instruction for the installation of the good, its use and conservation.

Great Britain did not incorporate Art. 2.5

7.    Unawareness of the consumer

According to Art. 2.3 there shall be deemed not to be a lack of conformity at the time the contract was concluded if the consumer was aware, or could not reasonably be unaware of, the lack of conformity.

Spain, Portugal, Luxemburg, the Netherlands, Greece, Ireland, Finland, Belgium and France copied thisprovision, whereas the Irish legislation demands an ordinary diligence for an unawareness of the consumer. The German and Austrian legislation extend the liability in the cases when the seller fraudulent and malicious concealment the lack of conformity and Denmark extend the liability in cases if the seller acts against good faith. Member States like Great Britain and Sweden do not incorporate such a provision in their corresponding legislations.

8.    Pre-existence of the lack of conformity

According to Art. 3.1 the seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.

Most of the Member States like, Spain, Portugal, Luxemburg, Italy, Austria, Great Britain, Ireland, Sweden, Belgium and France copy the Directive, whereas the Netherlands established expressively the pre-existence of the lack of conformity.

In the Member States like Germany, Greece, Finland and Denmark the moment to determine the pre-existence of the lack of conformity is not the delivery, but the skipping of risks of fortuitous loss.

Art. 5.3 establishes a presumption of the pre-existence of the lack of conformity. So, “unless proved otherwise, any lack of conformity which becomes apparent within six months of delivery of the goods 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.

This presumption is also established in all Member States for the period of six months with the only exception of Portugal. The Portuguese legislation extends the period of presumption for the whole time of liability, which means that it is extended up to two years.

According to Art. 2.3 the seller will not be liable if the lack of conformity has its origin in materials supplied by the consumer.

Spain, Luxemburg, Austria, Ireland, Belgium and France adopted this regulation without modification. In Italy the seller is not liable for the lack of conformity if the lack of conformity has its origin in the instructions of the consumer. Other Member States like Great Britain and Sweden did not take over this discretionary clause.

9.    Consumer rights

a)    Repair of the good or its replacement

The consumer rights are numerated in Art. 8.1 in a not exclusive way. The consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate. Furthermore the consumer may require an appropriate reduction of the price or have the contract rescinded.

All Member States adopted these four rights and in most of the Member States it is recognized that the consumer would also have the right of requiring a compensation for sustained damages.

Whereas in Austria this compensation for sustained damages is established instead of the right of repair of replacement, in Greece the right of compensation for sustained damages is added to the four rights established by the Directive.

In Italy, Sweden, Finland and Denmark these rights are expressively mentioned as exception of the contractual non-fulfilment.

However, the Directive establishes a gradation between the four consumer rights in a hierarchical sense. On the first level the consumer is only allowed to require the repair of the good and the replacement and on the second level he can require a price reduction or the rescindment of the contract. This (last) subsidiary rights can only be required if the consumer is not allowed to require the first ones, if it is impossible or disproportionate, or if the seller has not completed the remedy within a reasonable time, or if the seller has not completed the remedy without significant inconvenience to the consumer.

Member States like Italy, Great Britain, Ireland Belgium and France established a similar hierarchical system between the consumer rights. In some Member States, like Spain, the Netherlands, Sweden and Finland this hierarchical system experienced small modification. So in these Member States it is not necessary that rights, the repair of the good or its replacement are not possible, but only one of these rights can not be required. In Portugal, Luxemburg and Greece the legislation did not provide any hierarchical system. The German and Austrian legislation establish further suppositions for requirement of the subsidiary consumer rights. Denmark did not establish a hierarchical system, but leave this up to the contractual parties. So if the seller offers to repair the good or to replace it, before the consumer make any statement how to proceed, the consumer is not allowed to require an appropriate price reduction or the rescindment of the contract.  In Great Britain, the Judge is enabled to impose a different right then the requested one. Finally, in the French or Italian legislation the consumer is enabled to base its rights on other established statutory provisions (e.g. a price reduction or rescindment based on hidden defects).

In this context, the Member States´ legislations established expressively that only the consumer is enabled to require the repair of the good or its replacement, whereas in Member States like Finland and Denmark, if the consumer informs about a lack of conformity and did not require its repair or replacement, the seller is enabled to perform the repair of the good or its replacement if he offers to do so without any delay or without causing significant inconvenience to the consumer.

However, all Member States have in common, that everything has to be free of charge for the consumer.

b)    Limitation of the repair of the good or its replacement

According to Art. 3.3.1 the consumer is not allowed to require the repair of the good or its replacement, if it is impossible or disproportionate.

Most of the Member States follow this concept without significant amendments, whereas some of them introduce some further definitions or modifications. So in the Italian legislation, to impossibility of repairing the good or replacing it must be in an objective sense, whereas in Portugal for example the limitation for the consumer to get access to a repair of the good or its replacement is, when it is impossible or it would be abusive.

The Directive did not established a certain period of time wherein the repair of the good or its replacement must be performed by the seller and only mention that it must be done in “reasonable time” (Art. 3.3).

This concept was taken over by most of the Member States (Spain, Portugal, the Netherlands, Italy, Austria, Greece, Great Britain, Ireland, Sweden, Finland, Denmark, Belgium). Luxemburg and France established a time period of one month, whereas the Netherlands (additionally) allow the consumer to repair the good and charge the seller for it.

c)    Price reduction or rescindment of the contract

Regarding these two consumer rights, the Directive only establishes that they are subsidiary, without mentioning for example if they are for free for the consumer, which expressively is mentioned in French legislation. However, the limitation of these rights consists in being “appropriate” referring to the price reduction (Art. 3.5) and not being a “minor lack of conformity” referring to the rescindment of the contract (Art. 3.6)

In reference to the question what is an “adequate” price reduction most of the Member States´ legislation avoid to establish a clear definition by taken over the wording of the Directive or by changing it in an insignificant way like in Sweden or Finland, where the reduction has to be proportional to the importance of the lack of conformity. In Member States like Spain, the Netherlands, Italy and Germany the legislation establishes a concrete way how to calculate the price reduction.

Concerning the rescindment of the contract, Member States like Spain, Austria, Ireland, Finland, Denmark and Belgium copy the wording of the Directive, whereas Member States like Portugal and Great Britain did not adopt the limitation established in Art. 3.6 of the Directive.

The Italian legislation furthermore permits the rescindment of the contract also in (specific) cases where the lack of conformity is minor. The Portuguese legislation establishes an additional limitation for a rescindment of the contract. So the consumer is not allowed to rescind the contract if the good will decay or will be lost.

10.  Time limits

Art 5 establishes three different types of time limits. The first time limit demands a minimum limitation period of two years from the time of delivery, so that the seller is liable for any lack of conformity apparent within this period of time (Art. 5.1). The Directive furthermore establishes a second time limit where the Member states may provide that, in order to benefit from his rights, 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). The third time limit established by the Directive concerns the question of who has to prove that the lack of conformity existed in the moment of delivery. Art. 5.3 establishes, that unless proved otherwise, any lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of goods or the nature of the lack of conformity.

Member States have developed different legislations concerning the time limits. Some Member States, like Spain, Germany, Luxemburg and Sweden, established only one time limit concerning the limitation period of two years from the time of delivery, so that the seller is liable for any lack of conformity apparent within this period of time, whereas some Member States extended this limitation period for certain goods. Denmark and Portugal also established the two-year limitation period as a general rule, but extend it up to five years for

real estates and processed goods. Austria extended the limitation period for real estates up to three years. Great Britain and Ireland extend their limitation period up to six years (Scotland five years). Finally, some Member States, like the Netherlands and Italy did not have any limitation period.

Within this (general) limitation period it has to be mentioned that according to Art. 7.1 Member States may provide that, in case of second-hand goods, the seller and consumer may agree contractual terms or agreements which have a shorter time period for the liability of the seller than that set down in Art. 5.1, but that such a period may not be less than one year.

The Netherlands, Greece, Great Britain, Ireland, Sweden, Finland, Denmark and France do not adopt such a statutory provision, whereas the other Member States introduced in their legislation such a statutory provision. Within this last group of Member States in Spain, Portugal and Luxemburg such an agreement has to be fixed in a written form and can not be part of general terms and conditions of contracts.

As already mentioned the Directive enabled the Member States to impose the duty of claiming within a two month limitation period.

Some of the Member States like Germany, Austria, Greece, Ireland and Great Britain do not adopt such a statutory provision. Also Belgium does not have such a statutory provision, but the parties are enabled to agree on such a provision by contract. Other Member States like Spain, Italy Portugal, Luxemburg and the Netherlands do so. However, this period is extended in Portugal up to one year if real estates are involved. Concerning this limitation period the Irish legislation establishes that the claim has to be filed to the seller within a reasonable time, which is interpreted that the consumer has to complain also within the two-month-period.

In this context it has to be stated that the Spanish and Italian legislation additionally fix another limitation period for the consumer to initiate a possible lawsuit. In Spain the consumer has to file a lawsuit within three years after the complaint, whereas Italy establishes a limitation period of 26 months to file a lawsuit.

11.  Seller´s liability

The Directive states clearly that the seller is liable for any lack of conformity, even though it is not imputable to him. All Member States follow this provision. In addition to this they also adopted, in accordance to Art. 4 of the Directive, statutory provisions that the final seller shall be entitled to pursue remedies against the personal or persons liable in the contractual chain, if the lack of conformity results from an act or omission by the producer, a previous seller in the same chain of contracts or any intermediary.

However, this right of redress can not be considered as a general provision concerning a possible liability of the producer. According to this, Germany, the Netherlands, Italy, Austria, Greece, Great Britain, Ireland and Denmark do not establish such a provision, whereas in other Member States, like Luxemburg, Belgium and France such a liability is established by common jurisprudence. Spain, Portugal, Sweden and Finland establish statutory provisions when such a direct claim against the producer is possible. According to Spanish legislation, a consumer can directly file his complain against the producer if it is impossible or it would be an excessive charge to file it against the seller.

12.  Guarantees

Finally, the Directive also mentions the guarantee (Art. 1.2 e), which shall mean any undertaking by the seller or the producer to the consumer, given without extra charge, to reimburse the price paid or to replace, repair or handle consumer goods in any way if they do not meet the specifications set out in the guarantee statement of in the relevant advertising.

Most of the Member States adopted the same wording of this provision, whereas others introduced some modifications. Spain, Portugal, Austria, Greece, Belgium and France extend this provision even for the cases when the undertaking is against payment. Furthermore some Member States like Spain, Portugal, Luxemburg, Austria, Greece, Sweden and France did not limit the personal area of application to the seller and the producer. Spain and Greece, furthermore adopt specific statutory provisions regarding the limitation period of such guarantees (six months after the ending of the warranty limitation period in Spain).

However, the guarantee shall state that the consumer has legal rights under applicable national legislation governing the sale of consumer goods and make clear that those rights are not affected by the guarantee and that it shall set out in plain intelligible language the content of the guarantee and 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.

All Member States adopted this statutory provision without any modifications.

Art. 6.3 of the Directive states that on request of the consumer, the guarantee shall be made available in writing or feature in another durable medium available and accessible to him. With exception of Portugal, Luxemburg, Greece and France all other Member States adopted this provision in the same wording, whereas the mentioned four Member States establish that the guarantee shall be made available in writing or feature in another durable medium, independent from the consumers´ possibility to have access to this medium.

Finally, Art. 6.4 enabled the Member States that they may provide that the guarantee has to be drafted in one or more languages which the Member State shall determine from among the official languages of the Community.

At this point, only the German, Irish and Finish legislation do not establish anything about the language of such a guarantee, whereas other Member States, like Spain, Luxemburg, Italy, Greece and Great Britain do so.