Judgment;Abstract — ECLI:EU:C:2022:353
Date: 2022-05-05
Language of the case: German
Court formation: Third Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-179/21 – 1 
Case C-179/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
23 March 2021 
Referring court or tribunal: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
11 February 2021 
Appellant on a point of law: 
absoluts-bikes and more- GmbH & Co. KG 
Respondent in the appeal on a point of law: 
the-trading-company GmbH 
  
Subject matter of the main proceedings 
Injunctive relief under competition law due to incomplete information concerning 
a guarantee when offering goods on the internet 
Subject matter and legal basis of the reference 
The request for a preliminary ruling under Article 267 TFEU concerns the 
interpretation of Article 6(1)(m) of Directive 2011/83/EU in so far as it relates to 
the existence and scope of information requirements concerning a manufacturer’s 
guarantee. 
Questions referred for a preliminary ruling 
1. Does the mere existence of a manufacturer’s guarantee trigger the 
information requirement under Article 6(1)(m) of Directive 2011/83/EU? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-179/21 
 
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2. If Question 1 is answered in the negative: Is the information requirement 
under Article 6(1)(m) of Directive 2011/83/EU triggered by the mere mention of a 
manufacturer’s guarantee in the trader’s offering or is it triggered only if the 
mention of such a guarantee is readily apparent to the consumer? Is there also an 
information requirement if it is readily apparent to the consumer that the trader 
provides access to only the manufacturer’s information concerning the guarantee? 
3. Must the information on the existence and conditions of a manufacturer’s 
guarantee as required under Article 6(1)(m) of Directive 2011/83/EU contain the 
same details as a guarantee under 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 (OJ 1999 L 171, p. 12) or are 
fewer details sufficient? 
Provisions of EU law relied on 
Article 169 TFEU; 
Article 38 and the second sentence of Article 52(1) of the Charter of Fundamental 
Rights of the European Union; 
Recitals 4, 5 and 7 as well as Article 2, point 14, Article 4, Article 5(1)(e) and (3) 
and Article 6(1)(m) of Directive 2011/83; 
Article 6(2) of Directive 1999/44. 
Provisions of national law relied on 
Paragraphs 3, 3a and 8 of the Gesetz gegen den unlauteren Wettbewerb (Law on 
unfair competition; ‘the UWG’), 
Paragraphs 312a(2), 312d(1), first sentence, 434(1) and 479(1) of the Bürgerliches 
Gesetzbuch (Civil Code; ‘the BGB’), 
Article 246(1), point 5, and (2) and Article 246a(1)(1), first sentence, point 9 of 
the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Law to the 
Civil Code; ‘the EGBGB’). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The parties are competitors in the distribution of pocket knives by way of online 
trading. 
2 The defendant and appellant on a point of law (‘the defendant’) offered a pocket 
knife of the Swiss manufacturer Victorinox for sale on the internet platform 
Amazon. The Amazon page offering the knife for sale did not itself contain any 
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information regarding a guarantee provided by the defendant or a third party for 
that knife, but provided – under the subheading ‘Further technical information’ – a 
link labelled ‘Operating instructions’. Clicking on that link would open a 
document stored on a server of the operator of the internet platform Amazon, 
which reproduced an extensive, two-page product information sheet designed and 
written by the manufacturer of the knife. The second page of the document 
contained the following reference to the ‘Victorinox guarantee’: 
The Victorinox guarantee covers any defects in material and workmanship for an 
unlimited period (2 years for electronics). Damage caused by normal wear and 
tear or by improper use is not covered by the guarantee. 
3 The applicant and respondent in the appeal on a point of law (‘the applicant’) 
takes the view that the defendant thus failed to provide sufficient information 
about the guarantee provided for the knife. It therefore sought an injunction 
against the defendant. 
4 The action, which was unsuccessful at first instance, was upheld by the court 
ruling on the appeal on the merits. By the appeal on a point of law, for which the 
court ruling on the appeal on the merits granted leave and which the applicant 
claims should be dismissed, the defendant seeks the restoration of the judgment of 
the regional court. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The court ruling on the appeal on the merits considered the action to be well-
founded and held that there was a claim for injunctive relief pursuant to 
Paragraphs 8, 3 and 3a of the UWG, read in conjunction with the first sentence of 
Paragraph 312d(1) of the BGB and Article 246a(1)(1), first sentence, point 9 of 
the EGBGB. That court stated that, in accordance with its spirit and purpose, the 
seller’s duty to provide information applies even if – as in the present case – the 
goods offering contains a reference, in whatever form, to the existence of a 
guarantee. 
6 The success of the appeal on a point of law brought before the referring court 
hinges on whether the applicant is entitled to the injunctive relief sought by it. 
7 In order for that to be the case, it is first necessary that the defendant had a duty to 
provide information pursuant to the first sentence of Paragraph 312d(1) of the 
BGB, read in conjunction with Article 246a(1)(1), first sentence, point 9 of the 
EGBGB. 
8 The first sentence of Paragraph 312d(1) of the BGB provides that, in the case of 
distance contracts, the trader is obliged to provide the consumer with the 
information prescribed in Article 246a of the EGBGB. In accordance with 
Article 246a(1)(1), first sentence, point 9 of the EGBGB, the trader is obliged to 
provide the consumer with information regarding, where applicable, the existence 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-179/21 
 
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and the conditions of after-sale customer assistance, after-sales services and 
guarantees. 
9 The abovementioned provisions serve to transpose Article 6(1)(m) of Directive 
2011/83 and must therefore be interpreted in accordance with that provision. 
When interpreting the German provisions, it must be borne in mind that, in 
accordance with Article 4 and recital 7, Directive 2011/83 is oriented towards full 
harmonisation of the aspects of consumer protection covered by it. Therefore, the 
Member States must not maintain or introduce more or less stringent provisions in 
this area. 
10 The information requirement under Article 6(1)(m) of Directive 2011/83 exists 
not only in the case of a commercial guarantee provided by the trader himself or 
herself, but also where the guarantee originates from the manufacturer of the 
product. According to the definition in point 14 of Article 2 of Directive 2011/83, 
‘commercial guarantee’ means any undertaking by the trader or a producer (the 
guarantor) to the consumer, in addition to his legal obligation relating to the 
guarantee of conformity, to reimburse the price paid or to replace, repair or 
service goods in any way if they do not meet the specifications or any other 
requirements not related to conformity set out in the guarantee statement or in the 
relevant advertising available at the time of, or before the conclusion of the 
contract. Accordingly, not only the trader but also the manufacturer can be the 
guarantor. 
11 The answer to the question, which is a matter of debate in the German case-law 
and legal literature, as to whether the mere existence of a manufacturer’s 
guarantee triggers the information requirement under Article 6(1)(m) of Directive 
2011/83 depends on the meaning of the term ‘where applicable’ in Article 6(1). 
12 The wording of Article 6(1)(m) of Directive 2011/83 allows both interpretations, 
as the term ‘where applicable’ could mean either ‘in the event of the existence of a 
guarantee’ or ‘depending on the form taken by the trader’s offering’. 
13 The context of the provision might militate in favour of the view that the 
guarantee must be mentioned in the trader’s offering. 
14 Guarantees are referred to in Article 6(1)(m) of Directive 2011/83 in connection 
with after-sales services. Since information about after-sales services is required 
only if they are to become part of the contract or are in any case offered by the 
seller as additional services subject to a charge at the time of the conclusion of the 
contract, it could also be the case for guarantees that they must be mentioned in 
the offering. 
15 Furthermore, the trader’s information requirements under Article 6(1) of Directive 
2011/83 relate, in principle, only to circumstances directly related to the contract, 
not to legal relationships between the consumer and third parties. Article 6(1)(m) 
of Directive 2011/83 could therefore also be interpreted restrictively to the effect 
that the trader must at least implicitly connect the after-sales services and 
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guarantees to the contract by referring to them during the contract negotiations, 
for instance, or by indicating the existence of a guarantee in some way in his or 
her goods offering. 
16 The regulatory objective of Article 6(1)(m) of Directive 2011/83 does not clearly 
militate in favour of one or the other interpretation. 
17 The fact that, according to Article 1 of Directive 2011/83, read in the light of 
recitals 4, 5 and 7 thereof, the directive pursues the purpose of ensuring a high 
level of consumer protection by guaranteeing consumer information and safety in 
transactions with traders militates in favour of allowing the mere existence of a 
manufacturer’s guarantee to suffice. Furthermore, in EU policies, the protection of 
consumers is enshrined in Article 169 TFEU and Article 38 of the Charter of 
Fundamental Rights of the European Union. The consumer should be in a better 
position to compare offers – including cross-border offers – on the basis of 
comprehensive information and to weigh up the pros and cons of the contract in 
order then to make a considered decision. 
18 On the other hand, consumer protection does not necessarily require a trader to 
point out circumstances which may be positive for the buyer, such as a 
manufacturer’s guarantee, but from which the trader himself or herself does not 
benefit in competition. 
19 Furthermore, when interpreting Article 6(1)(m) of Directive 2011/83, it must be 
borne in mind that the fundamental rights of traders must not be 
disproportionately restricted. 
20 In accordance with recital 4 of Directive 2011/83, it is necessary to strike the right 
balance between a high level of consumer protection and the competitiveness of 
enterprises, while respecting the trader’s freedom to conduct a business as 
guaranteed by Article 16 of the Charter of Fundamental Rights of the European 
Union. According to the second sentence of Article 52(1) thereof, subject to the 
principle of proportionality, limitations to the freedom to conduct a business may 
be made only if they are necessary and genuinely meet other objectives of general 
interest recognised by the European Union or the need to protect the rights and 
freedoms of others. 
21 In that respect, it is assumed in favour of traders that a seller must remain free to 
assess independently whether, in his or her communication with the customer, the 
manufacturer’s guarantee represents an advantage that is worth the effort of 
including in the presentation of the offering, and to offer the object of sale 
potentially without referring to the existence of a manufacturer’s guarantee, in the 
exercise of his or her contractual freedom. 
22 If, on the other hand, the seller’s information requirement is deemed to exist 
solely by virtue of the fact that the manufacturer of the object of sale provides a 
guarantee, sellers would have to research, for each product sold, whether a 
manufacturer’s guarantee exists and, if so, under what conditions – a task that may 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-179/21 
 
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involve a considerable amount of effort. They would also have to monitor 
constantly such guarantees for any changes and incorporate them into their 
consumer information. Moreover, several manufacturers’ guarantees could even 
apply in parallel in the case of goods made up of individual components, for 
instance, or in the case of services. 
23 Sellers would also run a considerable liability risk if their information concerning 
the manufacturer’s guarantee were no longer up-to-date. As a general rule, the 
existence of a manufacturer’s guarantee constitutes an essential characteristic of 
the object of sale pursuant to Paragraph 434(1) of the BGB. If the seller’s offering 
refers to a manufacturer’s guarantee which in fact does not exist, no longer exists 
or does not exist to the extent stated, this constitutes, in principle, a material defect 
pursuant to Paragraph 434(1), second sentence, point 2, and third sentence of the 
BGB. 
24 This is countered by the argument that, with regard to the manufacturer’s 
guarantee, the trader will generally only have to provide information concerning a 
further guarantee. According to that argument, such an information requirement is 
therefore still practicable and does not unreasonably overburden the trader. 
25 When interpreting Article 6(1)(m) of Directive 2011/83, it must also be borne in 
mind that the question of the seller’s information requirement in relation to a 
manufacturer’s guarantee arises in the same way for contracts for the sale of 
consumer goods by way of physical outlets. In respect of such contracts also, with 
the exception of transactions for everyday goods, the consumer must be informed 
of guarantees pursuant to Paragraph 312a(2) of the BGB, read in conjunction with 
Article 246(1), point 5, and (2) of the EGBGB, which serves to transpose 
Article 5(1)(e) and (3) of Directive 2011/83. The question of how a retailer for 
example is supposed to provide, with a reasonable amount of effort, information 
about the various conditions of manufacturers’ guarantees for each individual 
product offered arises all the more so in the context of trading by way of physical 
outlets. 
26 Against this background, the present Chamber is inclined to interpret 
Article 6(1)(m) of Directive 2011/83 as meaning that the mere existence of a 
manufacturer’s guarantee does not trigger the information requirement. 
27 In the event that Question 1 is answered in the negative, the question arises as to 
whether the mere mention of a manufacturer’s guarantee in the trader’s offering 
triggers the information requirement under Article 6(1)(m) of Directive 2011/83 
or whether that requirement is triggered only if the mention of such a guarantee is 
readily apparent to the consumer. It is also unclear whether an information 
requirement also exists if it is readily apparent to the consumer that the trader 
provides access to only the manufacturer’s information concerning the guarantee. 
VICTORINOX 
 
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28 In accordance with the case-law of the courts of instance, if traders advertise using 
a manufacturer’s guarantee, they are subject to an information requirement under 
Article 6(1)(m) of Directive 2011/83. 
29 It is unclear, however, whether traders are subject to such an information 
requirement even if they do not highlight the manufacturer’s guarantee in their 
advertising. It is not unequivocally clear from Article 6(1)(m) of Directive 
2011/83 in which form and to what extent that guarantee must be mentioned in 
order to trigger the information requirement, if such a mention is required. 
30 In the present case, it could be assumed, in line with the view taken by the court 
that ruled on the appeal on the merits, that the mere mention of the existence of a 
manufacturer’s guarantee in the goods offering without any emphasis for 
advertising purposes and in whatever form is sufficient to establish the 
requirement to refer to the conditions of that guarantee. 
31 On the other hand, the establishment of an information requirement could require 
that the existence of a manufacturer’s guarantee is mentioned in a manner that is 
readily apparent to the consumer, which is doubtful in a case where the mention 
appears on the second page of a document accessed via a link entitled ‘Operating 
instructions’. 
32 The question also arises as to whether the trader is subject to an information 
requirement if it is clear to the consumer that the details regarding the existence of 
a manufacturer’s guarantee originate not from the trader, but from the 
manufacturer. 
33 If there is an information requirement under Article 6(1)(m) of Directive 2011/83, 
the question finally arises as to what the content of the information must be. 
34 According to one view, which was also shared by the court that ruled on the 
appeal on the merits, the normative content of Paragraph 479(1) of the BGB can 
be used to determine the scope of the information requirement. 
35 According to Paragraph 479(1), second sentence, of the BGB, a guarantee 
statement must contain a reference to the consumer’s statutory rights and to the 
fact that those rights are not limited by the guarantee, and must also contain the 
contents 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. This provision serves to implement 
Article 6(2) of Directive 1999/44 on certain aspects of the sale of consumer goods 
and associated guarantees. 
36 According to another view, the pre-contractual information under Article 6(1)(m) 
of Directive 2011/83 does not have to include all the details that must be 
contained in the guarantee statement itself pursuant to Article 6(2) of Directive 
1999/44. The question of what information is required instead is assessed 
differently by proponents of that view.