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(2004/C 84 E/0184)

WRITTEN QUESTION E-4085/03

by Marianne Thyssen (PPE-DE) to the Commission

(14 January 2004)

Subject:   Practical problems in application of Directive 1999/44/EC

Directive 1999/44/EC (1) of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees aims to harmonise Member States' rules on certain aspects of the sale of consumer goods and associateci guarantees. Under the Directive, the seller of a product is liable for any lack of conformity in goods that becomes apparent within two years of delivery. The purchaser may invoke certain guarantees, such as repair or replacement of the goods free of charge, an appropriate price reduction or rescission of the contract. According to Article 5(3), if any lack of conformity becomes apparent within six months of delivery, then there is a rebuttable presumption that this 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.

The new rules on guarantees apply to all tangible movable items, which implies that, in theory, they apply equally to flowers, plants and food products, goods that inherently have a limited life span. If a purchaser returns such a product to the seller within six months of purchase (because, for example, the product is not, or is no longer, fresh), the seller must provide proof that the product had in fact been fresh at the time of delivery in order to be exempted from the Directive's obligations on guarantees. Such proof is virtually impossible to provide.

Is the Commission aware of the problems that the application of the Directive may cause in the case of flowers, plants and food products, and has it already received complaints on the subject? Can the Commission state how Member States that have already transposed the Directive into their own national law have dealt with this problem, and whether these products would be covered by the exemption set out in Article 5(3) of the Directive? Does not the Commission feel that, because of the legal uncertainty that this causes, there should be an exemption or a limit on the rules on guarantees regarding such products? If it does, when does the Commission intend to submit appropriate proposals?

Answer given by Mr Byrne on behalf of the Commission

(26 February 2004)

Directive 1999/44/EC of the Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees covers ‘consumer goods’ as defined in Article l(2)(b). Broadly speaking, these include any tangible movable items. However, some tangible movable items which are not relevant for the present case are excluded from the scope of the Directive. In this sense, the Honourable Member is correct in asserting that tangible movable items with a limited life span such as flowers, plants and food products are covered by the Directive.

The Honourable Member is further correct in stating that according to Article 5(3) 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 proven otherwise. This rebuttable presumption in effect amounts to a shift of the burden of proof in favour of the consumer. This shift is one of the important benefits of the Directive for European consumers. The justification for this shift in burden of proof is that it is much easier for the seller in terms of his knowledge of the goods and of access to information relating to the goods to prove that they were in conformity with the contract. Consumers on the other hand will not always have the necessary expertise or access to the relevant information to prove their claim. However, there is an exemption to the application of this presumption where such a presumption is incompatible with the nature of the goods. This exemption was introduced in order to cover perishable goods such as those mentioned by the Honourable Member. This issue was discussed in the Parliament and the Council during the co-decision procedure. Therefore, the Commission does not consider that there is any legal uncertainty in the case of flowers, plants and food products and has not received any complaints in respect of such goods.

It is currently not possible for the Commission to give a complete picture of the Member States' transpositions because Belgium, France and Luxembourg have still failed to notify transposition measures. A full review of the application of the Directive is due only in 2006.

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(1)OJ L 171, 7.7.1999, p. 12.

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