Opinion of the Advocate General — ECLI:EU:C:2013:128
Date: 2013-02-28
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

summary, the Directive imposes no obligation on a national court to grant a reduction of its own motion. However, the national court must take appropriate measures to enable the consumer to rectify an incorrect application if the consumer cannot at all assert his rights under the Directive by other means. The other party’s rights of defence must be preserved in respect of all measures so taken. C – Minor nature of the defect 55. The referring court has found that the contract cannot be rescinded because the defect in the vehicle is only minor. A number of parties have cast doubt on this finding. 56. The referring court has not, however, sought an interpretation of Article 3(6) of the Directive, which contains the phrase ‘if the lack of conformity is minor’. It is for the referring court alone to establish the facts and to decide what questions should be referred to the Court of Justice. 57. However, as the question of the minor nature of the defect is a question of interpretation of European Union law, I would point out that the Court of Justice has not so far ruled on the interpretation of the term ‘minor’ in Article 3(6) of the Directive. Other European courts, including, in particular, supreme courts, (33) have ruled in apparently comparable cases that the entry of water is not to be regarded as a defect of a minor nature. (34) The fact that the vehicle can be used as a means of transport although the roof is not watertight, which is stated by the referring court in the reference for a preliminary ruling as the justification for its finding, was irrelevant to the decisions in those cases. It would therefore have been useful for the sake of the uniformity of European Union law and certainly helpful for the resolution of the dispute pending before it if the Juzgado de Primera Instancia nº 2 de Badajoz had also referred the question of the minor nature of the defect and, consequently, of the interpretation of Article 3(6) to the Court of Justice for a preliminary ruling. V – Conclusion 58. To conclude, I propose that the Court answer the question referred for a preliminary ruling as follows: Directive 1999/44 is to be interpreted as meaning that, if a consumer seeks in legal proceedings only rescission of the contract, but such rescission cannot be granted because the lack of conformity is minor, it requires a national court to take an appropriate measure to enable the consumer to enforce his claims under the Directive. It is for national law to determine which procedural measure can be taken to achieve this. The rights of defence of the other party must, however, be taken into account in this connection. 2 – Original language: German. 3 – 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) (‘Directive 1999/44’ or ‘the Directive’). 4 – With regard to the other two requests for a preliminary ruling on Directive 1999/44, see Joined Cases C‑65/09 and C‑87/09 Weber and Putz [2011] ECR I‑5257, and Case C‑404/06 Quelle [2008] ECR I‑2685. 5 – BOE (Boletín Oficial del Estado) No 165 of 11 July 2003, p. 27160. 6 – This legal instrument, although now repealed by Royal Legislative Decree No 1/2007 of 16 November 2007 approving the consolidated version of the General law on protection for consumers and users and supplementary laws (BOE No 287 of 30 November 2007, p. 49181), is still applicable in this case because the new legislation did not enter into force until 1 December 2007 and thus after the vehicle in question had been purchased. 7 – Law No 1/2000 of 7 January 2000 on civil procedure. BOE No 7 of 8 January 2000, p. 575. 8 – According to the order for reference, the car went to the workshop at least five times between November 2005 and July 2008. 9 – Spanish Public Attorney’s Office. 10 – Case C‑409/06 Winner Wettern [2010] ECR I‑8015, paragraph 36, and Case C‑115/08 ČEZ [2009] ECR I‑10265, paragraph 57 and the case-law cited. 11 – Article 218 LEC. 12 – Article 216 LEC. 13 – See also in this regard the Quelle judgment, cited in footnote 3, paragraph 36. 14 – As the Hungarian Government rightly points out, the position is different in the case of, for example, Council Directive 1993/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), Article 7(1) of which expressly provides that Member States are to ensure that adequate and effective means exist to prevent the continued use of unfair terms in contracts. 15 – Joined Cases C‑317/08 to C-320/08 Alassini and Others [2010] ECR I‑2213, paragraph 47; Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 44 and the case-law cited; Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 39; Case C‑168/05 Mostaza Claro [2006] ECR I‑10421, paragraph 24; Case 33/76 Rewe [1976] ECR 1989, paragraph 5; and Case 45/76 Comet [1976] ECR 2043, paragraph 13. 16 – Case C‑177/10 Rosado Santana [2011] ECR I‑7907, paragraph 89; Case C‑40/08 Asturcom Telecomunicaciones [2009] ECR I‑9579, paragraph 38; Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 28; Mostaza Claro, cited in footnote 14, paragraph 24; Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 31; and Joined Cases C‑430/93 and C‑431/93 van Schijndel and van Veen [1995] ECR I‑4705, paragraph 17. 17 – See, inter alia, Impact, cited in footnote 14, paragraph 46; van der Weerd and Others, cited in footnote 15, paragraph 28; Case C‑312/93 Peterbroek [1995] ECR I‑4599, paragraph 12; and Rewe, cited in footnote 14, paragraph 5. 18 – .van Schijndel and van Veen, cited in footnote 15, paragraph 19. 19 – .van Schijndel and van Veen, cited in footnote 15, paragraph 19. 20 – .Asturcom Telecomunicaciones, cited in footnote 15, paragraph 39; Case C‑2/08 Fallimento Olimpiclub [2009] ECR I‑7501, paragraph 27; and Peterbroeck, cited in footnote 16, paragraph 14. 21 – See again, in this regard, Article 216 LEC, which provides that the courts are to decide cases on the basis of the facts, evidence and claims put forward by the parties. 22 – Case C‑227/08 Martín Martín [2009] ECR I‑11939, paragraph 20; van der Weerd, cited in footnote 15, paragraph 35; and van Schijndel and van Veen, cited in footnote 15, paragraph 21. 23 – .van der Weerd, cited in footnote 15, paragraphs 36 and 41, and van Schijndel and van Veen, cited in footnote 15, paragraph 22. 24 – .Impact, cited in footnote 14, paragraph 54, and Unibet, cited in footnote 14, paragraph 44. 25 – Case C‑396/09 Interedil [2011] ECR I‑9915, paragraph 38, and Case C‑173/09 Elchinov [2010] ECR I‑8889, paragraph 31. 26 – See Article 5(2) of the Directive, which allows Member States to provide that, in order to benefit from his rights under the Directive, the consumer must inform the seller of the lack of conformity within a period of two months from the date on which he detected such lack of conformity. 27 – See also, in this regard, Case C‑215/08 Fritz [2010] ECR I‑2947, paragraph 44, and Case C‑489/07 Messner [2009] I‑7315, paragraph 25, in which the Court ruled that the protection of consumers is not an absolute principle and that the relevant directives are not intended to grant the consumer rights going beyond what is necessary to achieve the objectives pursued. 28 – Cited in footnote 13. 29 – Joined Cases C‑240/98 to C‑244/98 Océano Grupo Editorial [2000] ECR I‑4941, paragraphs 27 and 29. 30 – .Océano Grupo Editorial, cited in footnote 28, paragraph 26. 31 – The Commission also expresses this view in its observations. It refers in this regard to a judgment of the Spanish Tribunal Supremo (Supreme Court) of 27 September 2011, STS 7744/2011, pp. 14 and 15, in which that court qualified the principle of congruency laid down in Article 218 LEC in the light of the iura novit curia principle. 32 – See, to this effect, recital 24 in the preamble to the Directive. 33 – See, for example, a judgment of the German Bundesgerichtshof (Federal Court of Justice) of 5 November 2008, VIII ZR 166/07. 34 – . – As there is insufficient information on the precise extent of the defect in Ms Duarte’s car, the actual comparability of the facts on which the findings are based cannot be assessed here. However, this does not apply to the legal argument relating to assessment of the defect.