# C_2022257EN.01001101.xml

| 4.7.2022 | EN | Official Journal of the European Union | C 257/11 |
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4.7.2022

EN

Official Journal of the European Union

C 257/11

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Judgment of the Court (Third Chamber) of 5 May 2022 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — absoluts -bikes and more- GmbH & Co. KG v the-trading-company GmbH

(Case C-179/21) (1)

(Reference for a preliminary ruling - Consumer protection - Directive 2011/83/EU - Article 6(1)(m) - Distance contract between a consumer and a trader - Obligation of the trader to inform the consumer of the existence and the conditions of a manufacturer’s commercial guarantee - Conditions under which such an obligation arises - Content of the information to be provided to the consumer about the manufacturer’s commercial guarantee - Impact of Article 6(2) of Directive 1999/44/EC)

(2022/C 257/15)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: absoluts -bikes and more- GmbH & Co. KG

Defendant: the-trading-company GmbH

Operative part of the judgment

| 1. | Article 6(1)(m) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that, as regards the manufacturer’s commercial guarantee, the information requirement imposed on the trader by that provision does not arise from the mere fact that that guarantee exists, but only where the consumer has a legitimate interest in obtaining information concerning that guarantee in order to decide whether to enter into a contractual relationship with the trader. Such a legitimate interest is established, inter alia, where the trader makes the manufacturer’s commercial guarantee a central or decisive element of its offer. In order to determine whether the guarantee constitutes a central or decisive element of the offer, account must be taken of the content and general layout of the offer with regard to the goods concerned, the importance of referring to the manufacturer’s commercial guarantee for sales or advertising purposes, the space occupied by that reference in the offer, the likelihood of mistake or confusion which that reference might trigger in the mind of the average consumer — who is reasonably well informed and reasonably observant and circumspect with respect to the different rights which he or she may exercise under a guarantee or to the real identity of the guarantor — whether or not there might be explanations relating to other guarantees covering the goods, and any other element capable of establishing an objective need to protect the consumer; |
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1.

Article 6(1)(m) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that, as regards the manufacturer’s commercial guarantee, the information requirement imposed on the trader by that provision does not arise from the mere fact that that guarantee exists, but only where the consumer has a legitimate interest in obtaining information concerning that guarantee in order to decide whether to enter into a contractual relationship with the trader. Such a legitimate interest is established, inter alia, where the trader makes the manufacturer’s commercial guarantee a central or decisive element of its offer. In order to determine whether the guarantee constitutes a central or decisive element of the offer, account must be taken of the content and general layout of the offer with regard to the goods concerned, the importance of referring to the manufacturer’s commercial guarantee for sales or advertising purposes, the space occupied by that reference in the offer, the likelihood of mistake or confusion which that reference might trigger in the mind of the average consumer — who is reasonably well informed and reasonably observant and circumspect with respect to the different rights which he or she may exercise under a guarantee or to the real identity of the guarantor — whether or not there might be explanations relating to other guarantees covering the goods, and any other element capable of establishing an objective need to protect the consumer;

| 2. | Article 6(1)(m) of Directive 2011/83, read in conjunction with the second indent of Article 6(2) of 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 must be interpreted as meaning that the information which must be provided to the consumer with regard to the conditions of the manufacturer’s commercial guarantee includes all details relating to the conditions of application and implementation of such a guarantee which allow the consumer to decide whether or not to enter into a contractual relationship with the trader. |
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2.

Article 6(1)(m) of Directive 2011/83, read in conjunction with the second indent of Article 6(2) of 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 must be interpreted as meaning that the information which must be provided to the consumer with regard to the conditions of the manufacturer’s commercial guarantee includes all details relating to the conditions of application and implementation of such a guarantee which allow the consumer to decide whether or not to enter into a contractual relationship with the trader.

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(1)  OJ C 242, 21.6.2021.

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