Existing disparities in relation to contract law in different Member States may adversely affect businesses and consumers, in addition to other key regulatory and non-regulatory issues such as tax laws, delivery network issues, payment systems and language barriers. However, the main difficulties encountered by consumers and the main source of disputes with traders concern the non-conformity of goods with the contract. It is therefore necessary to improve consumer confidence in the internal market and to help to create a level-playing field for traders.
This Directive should repeal the minimum harmonization Directive 1999/44/EC and introduce a new framework of harmonised rules on contracts for the sales of goods. However, Member States should be allowed to maintain or introduce in their national laws provisions on remedies for ‘hidden defects’ or on a short-term right to reject.
This Directive should not apply to digital content and digital services embedded in goods, such as DVDs and CDs or smart goods. As regards goods with embedded digital content or embedded digital services, the trader should be liable, under this Directive, to the consumer for meeting his obligations only in respect of the elements of the goods that do not concern the embedded digital content or digital service. The rules of this Directive should be without prejudice to the protection granted to consumers by applicable Union law with respect to embedded digital content or digital service.
‘Digital content’ means data which is produced and supplied in digital form. ‘Digital service’ means a service allowing the consumer the creation, processing of or access to data in digital form, or storage of data in digital form, where such data is uploaded or created by the consumer. ‘Embedded digital content or digital service’ means digital content or a digital service pre-installed in a good.
Due to the specific circumstances and the nature of the merchandise, this Directive should not apply to sales of live animals between trader and consumer.
The definition of consumer should cover natural persons who are acting outside their trade, business, craft or profession. However, in the case of dual purpose contracts, where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered to be a consumer. This reflects a common-sense approach to everyday transactions, and would also provide added legal certainty given the wide range of goods and scope of the proposal.
Some of the requirements for conformity of the contract, in particular in relation to quality, durability and appearance, are likely to apply in a different way in relation to the sale of second-hand goods. In many cases, a reasonable consumer’s expectations will be lower for second-hand goods than they are for brand new items. Therefore, consumers must be clearer about the intended purpose of such goods when communicating with the trader.
In any dispute between trader and consumer on lack of conformity, this factor will often be an important one in determining whether or not the burden of proof has been satisfied in terms of an alleged defect in the goods. However, where a consumer has had the opportunity to examine the goods in person before the conclusion of the contract, Member States might as a derogation and in the light of their particular markets and legal systems, choose to continue to provide that a trader and consumer can expressly agree in writing or on a durable medium a shorter legal guarantee period of not less than one year and, or alternatively, for a shorter period of burden of proof reversal in favour of the consumer of not less than six months.
In accordance with established practice and specific rules regarding auctioneer’s liability, it appears justified for the time being to maintain the possibility for Member States to exclude public auctions of second hand goods where the consumer has had the opportunity to attend the auction in person. Nevertheless, it should be a requirement that consumers are informed by a clear statement in writing or on a durable medium before the auction that these rules do not apply and an express reference given to the relevant statutory or other rights that are applicable. In addition, in line with Directive 2011/83/EU, the use of online platforms for auction purposes which are at the disposal of consumers and traders should not be considered as a public auction within the meaning of this Directive.
Durability should be defined as the ability of a product to maintain its required performance over a given or long period, under the influence of foreseeable actions, assuming a normal or average rate of usage. The underlying assumption is that the performance of the product will be maintained at an acceptable level, in relation to its initial performance, throughout its working life.
Enhancing legal certainty for both consumers and sellers requires a clear indication of the time when the conformity of the goods to the contracts should be assessed, subject to national rules on the commencement of prescription periods in exceptional cases. Within the first year, in order to benefit from the presumption of lack of conformity, the consumer should only demonstrate that the good is not conforming and that the lack of conformity became apparent within a year of delivery of the goods, without also needing to demonstrate that the lack of conformity actually existed at the relevant time for establishing conformity.
Where only one remedy is available and that remedy imposes costs on the trader that are disproportionate with regard to the value the goods would have if there were no lack of conformity and to the significance of the lack of conformity, it should be possible to limit the consumer’s right to reimbursement of the cost of removing the non-conforming goods and of installing the replacement goods to a payment by the trader of a proportionate amount.
Member States should ensure that national law adequately protects the trader when determining the person against whom the trader is able to pursue remedies, the time periods and the relevant actions and conditions of exercise.
It is appropriate for the Commission to review this Directive five years after its entry into force. In its review, the Commission should pay particular attention to the provisions of this Directive regarding remedies and the burden of proof – also with respect to second-hand goods as well as goods sold at public auctions –, the commercial guarantee and producer’s liability and the relationship with the Directive on certain aspects concerning contracts for the supply of digital content and digital services. That review could lead to a Commission proposal to amend this Directive.