Selling Consumer Goods in the European Union
by Kathryn Chapman
The European Economic Community (EEC) was first established to allow for the free movement of goods, persons, services and capital and to establish an economic system based on fair competition. In the 1970's programs were introduced in the EEC to protect the basic rights of consumers. With the Treaty of Maastricht signed in 1992, the European Union (EU) was established which added new areas of policy to the existing EEC/EC.
There are currently 27 member states (Member States) in the EU. If the law of a single Member State of the EU is different from others, it would cause problems for consumers and not contribute to the establishment of internal free movement of goods. The need for consumer protection, and judicial harmonization resulted in the enacting of legal rules providing a uniform MINIMUM level or protection for consumers in each Member State.
The EU has the right to promulgate directives. Directives set forth obligations for Member States regarding goals to be achieved and the Member States are free to choose the means, methods and procedures that will result in the achievement of the goal determined by the directive. Member States may decide whether it is necessary to enact new national laws or whether amending respective laws already in effect will achieve the goal.
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 (“DIRECTIVE”)
The Directive was passed on May 25, 1999, and took effect on July 7, 1999. It obliged Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive, no later that January 1, 2002. While not all Member States complied with the Directive by the deadline, all now have. The Directive sets a minimum standard; Member States can and have implemented legislation that is more stringent, as discussed below.
Scope of Directive
The Directive lays down a common set of consumer rights valid no matter where in the European Union the goods are purchased. Central among these is that if goods are defective, or do not conform with the contract agreed at the time of purchase, consumers have a right of redress against the seller for two years after taking delivery of the goods. Goods must be fit for their intended purposes at the time of purchase by the consumer and must show the quality and performance which are normal for goods of the sale type. The product has to have been defective at the time of delivery, but the defect must not have been apparent at the time the consumer made the purchase. As remedies, the consumer can request the goods be repaired, delivery of new goods, a price reduction on another purchase or a complete refund of their money. For six months after the delivery, the burden of proof is on the seller, not the consumer, to prove that the goods sold conformed to the contract of sale and were not defective.
From six to twenty-four months, it is the consumer’s obligation to prove that the defect in the product existed at the time the goods were delivered to the consumer. If a product was purchased without defects but begins to demonstrate reduced functionality after a reasonable period of wear and tear during the first two years, the consumer would not have a claim against the seller under the Directive, as long as such performance was normal for the goods of that type.
The final seller, who is responsible vis-à-vis the consumer, can under circumstances determined by the Member States hold the producer liable. Member States are allowed to have rules under their national law obliging consumers who wish to use their right of redress to inform the seller of any defect or lack of conformity in the goods within two months of them discovering it.
The directive also requires that commercial guarantees such as manufacturers’ guarantees or retailers' guarantees must be transparent and clearly drafted. When these guarantees are issued it must be indicated that they go beyond the legal rights of the consumer.
Member State Implementation
A compendium of the comparative implementation of the Directive, along with other consumer oriented directives, can be found here.
Summary
It is important to understand that this “product warranty” as contained in the Directive is with respect to conformity to the “contract” between the seller and the consumer at the time the goods were delivered. If there is no written contract, the label or advertising of the product might give rise to the liability.
Consumer goods are in conformity with the contract if they:
- Comply with the description given by the seller and possess the qualities of any sample or model
- Are fit for a particular purpose for which the consumer requires them and which he made known to the seller at the time of the contract which the seller has accepted
- Are fit for the purposes for which goods of the same type are normally used and/or
- Show the quality and performance which are normally in goods of the same types and which the consumer can reasonably expect given the nature of the goods and taking into account any public statement on specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labeling
Current States of the EU
Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, Netherlands, Austria, Portugal, Finland, Sweden, United Kingdom. Bulgaria, Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Slovakia
