Opinion of the Advocate General — ECLI:EU:C:2023:192
Date: 2023-03-09
Language of the case: German
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-133/22 – 1 
Case C-133/22 
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: 
28 February 2022 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
10 February 2022 
Defendant, counterclaimant and appellant in the appeal on a point of law: 
LACD GmbH 
Applicant, defendant in the counterclaim and respondent in the appeal on a 
point of law: 
BB Sport GmbH & Co. KG 
  
Subject matter of the main proceedings 
Consumer rights – Directive 2011/83/EU – Aspects concerning contracts for the 
sale of goods – Directive 2019/771/EU – Guarantee statement – Requirements – 
Any other requirements not related to conformity set out in the guarantee 
statement – Any other requirements not related to conformity – Circumstances 
specific to the consumer – Finding based on objective circumstances 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Can any other requirements not related to conformity set out in the guarantee 
statement within the meaning of Article 2, point 14, of Directive 2011/83/EU and 
any other requirements not related to conformity within the meaning of Article 2, 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-133/22 
 
2  
point 12, of Directive (EU) 2019/771 apply where circumstances specific to the 
consumer, in particular his or her subjective attitude towards the item purchased 
(in this case, the consumer’s personal satisfaction with the item purchased), have a 
bearing on the guarantor’s obligation, without it being necessary that those 
personal circumstances relate to the condition or features of the item purchased? 
2. If Question 1 is answered in the affirmative: 
Must it be possible to establish the absence of requirements based on the 
circumstances specific to the consumer (in this case, the consumer’s satisfaction 
with the goods purchased) in the light of objective circumstances? 
Provisions of European Union law relied on 
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 (‘Directive 2011/83’), Article 2, point 14 
Directive (EU) 2019/771 of the European Parliament and of the Council of 
20 May 2019 on certain aspects concerning contracts for the sale of goods, 
amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing 
Directive 1999/44/EC (‘Directive 2019/771’), Article 2, point 12 
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 
(‘Directive 1999/44’), Article 6(1) and (2) 
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 
2005 concerning unfair business-to-consumer commercial practices in the internal 
market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 
98/27/EC and 2002/65/EC of the European Parliament and of the Council and 
Regulation (EC) No 2006/2004 of the European Parliament and of the Council 
(‘Unfair Commercial Practices Directive’) (‘Directive 2005/29’), Article 3(2) and 
(4), Article 7(5), recital 10, third sentence, and recital 15 
Provisions of national law relied on 
Bürgerliches Gesetzbuch (Civil Code, ‘the BGB’), in particular Paragraph 443(1) 
and Paragraph 479(1), second sentence 
Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition, ‘the 
UWG’), in particular Paragraphs 3, 3a, 8(1), first sentence, and 11 
LACD 
 
3 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant sells sports and fitness goods via its online shop. Up until at least 
2013, the defendant, which distributes ‘LACD’ brand sports and fitness products 
via retailers and online merchants, attached hangtags to its T-shirts on which the 
following text was printed: 
‘LACD Warranty 
Every LACD product comes with our own lifetime guarantee. If you are not 
completely satisfied with any of our products, please return it to your 
specialist dealer from whom you purchased it. Alternatively, you can return 
it to “LACD” directly but remember to tell us where and when you bought 
it.’ 
2 In August 2018, the applicant purchased two of the defendant’s T-shirts from the 
online merchant ‘OUTDOOR WORKS’ using a test shopper. 
3 The applicant claims that the hangtags attached to the T-shirts carried the ‘LACD 
Warranty’, but that the information did not fulfil the statutory requirements for a 
guarantee statement. 
4 The applicant filed for an injunction requiring the defendant to cease and desist. 
The defendant defended the action and raised a plea of statute-barred limitation 
(Paragraph 11 of the UWG). 
5 The Landgericht (Regional Court) dismissed the action. The Court of Appeal 
upheld the action. 
6 By its appeal on a point of law, for which leave was granted by the Court of 
Appeal, the defendant is seeking reinstatement of the judgment by which the 
Regional Court dismissed the action. The applicant contends that the appeal on a 
point of law should be dismissed. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 1. The dispute concerns the question of whether the defendant’s promise on the 
hangtags is a guarantee statement. If it is, it does not fulfil the statutory 
requirements laid down in Paragraph 479(1), second sentence, of the BGB and is 
an unfair commercial practice within the meaning of Paragraph 3(1) and 
Paragraph 3a of the UWG. In that case, the defendant could be ordered to cease 
and desist (Paragraph 8(1) of the UWG). 
8 2. The EU law applicable to this case and the national law transposing it were 
amended after the defendant’s contested practice in August 2018 and delivery of 
the judgment on the appeal. Directive 1999/44 was repealed and replaced with 
effect from 1 January 2022 by Directive 2019/771, which applies to contracts 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-133/22 
 
4  
concluded on or after 1 January 2022. Paragraph 479(1) of the BGB was recast 
with effect from 1 January 2022 under the Gesetz zur Regelung des Verkaufs von 
Sachen mit digitalen Elementen und anderer Aspekte des Kaufvertrags (Law 
regulating the sale of goods with digital elements and other aspects of the contract 
of sale, Federal Law Gazette I, p. 2133). 
9 3. Paragraph 479 of the BGB lays down the requirements for guarantee 
statements. The version which applied up to 31 December 2021 transposed 
Article 6(2) of Directive 1999/44 and the version which has applied since 
1 January 2022 transposes Article 17(2), third sentence, of Directive 2019/771 and 
regulates specific aspects of unfair commercial practices in the form of 
information requirements (see Article 3(4) and recital 10, third sentence, of 
Directive 2005/29). Paragraph 443(1) of the BGB served up to 31 December 2021 
to transpose the definition of guarantee in Article 1(2)(e) and Article 6(1) of 
Directive 1999/44 into German law for the purposes of Paragraph 479(1) of the 
old version of the BGB. Since 1 January 2022, it has been based on the definition 
of commercial guarantee in Article 2, point 12, of Directive 2019/771 for the 
purposes of Paragraph 479(1) of the new version of the BGB. In its current 
version, which entered into force on 13 June 2014, Paragraph 443(1) of the BGB 
also serves to transpose the definition of commercial guarantee in Article 2, 
point 14, of Directive 2011/83. 
10 4. As the T-shirts with the hangtags were supplied to a test shopper instructed by 
the applicant, the Chamber assumes that the purchase of the T-shirts qualifies as a 
sale of consumer goods within the meaning of Article 1(1) and (2)(a) to (c) of 
Directive 1999/44 or a sales contract between a consumer and a seller within the 
meaning of Article 3(1) and Article 2, points 1 to 3, of Directive 2019/771. 
11 5. The statement printed on the hangtags need only include the information 
required for a guarantee statement by Article 6(2) of Directive 1999/44 or 
Article 17(2), third sentence, of Directive 2019/771 and included in 
Paragraph 479(1), second sentence, of the BGB if it is a guarantee within the 
meaning of Paragraph 479(1) and Paragraph 443(1) of the BGB. The Chamber 
questions whether the defendant’s assurance that the buyer can return the product 
purchased if they are not completely satisfied with it is such a guarantee. 
12 a) The Chamber is in no doubt as to the fact that, if Paragraph 443(1) of the BGB 
is interpreted in conformity with the directives, the consumer’s satisfaction with 
the product purchased does not represent part of the nature of the item purchased 
which can be guaranteed within the meaning of Paragraph 443(1), first instance, 
of the BGB. Under German law, the nature of an item means all the factors 
inherent in the item itself, as well as all the relationships between the item and the 
environment that affect its repute in the public perception. 
13 In the opinion of the Chamber, the same follows from the concept of 
specifications in Article 1(2)(e) of Directive 1999/44 and in Article 2, point 12, of 
Directive 2019/771, according to which only those circumstances which have an 
LACD 
 
5 
objective bearing on the consumer product or goods form part of the specification 
of the consumer product or goods that can substantiate a guarantee; the 
consumer’s subjective requirements for an item sold in conformity with the 
contract do not suffice. 
14 (1) Although, based on the wording of the provisions of the directives, the 
information of the seller or producer in the guarantee statement or relevant 
advertising has a bearing on the guarantee, that does not mean that every item can 
be guaranteed. On the contrary, the guarantor’s statement must contain the 
information that the consumer product meets certain specifications or has certain 
properties, from which it follows that the information must relate to properties or 
conditions of the item itself. 
15 (2) It follows from the correlation between the rules enacted in Directive 1999/44 
and the rules enacted in Directive 2019/771 that the specifications that can 
substantiate a guarantee relate to circumstances that can substantiate a defect in 
the item purchased and thus relate to the product purchased itself. 
16 Article 2(2)(a) and (d) of Directive 1999/44 refers to the specifications of the 
goods as a criterion for their conformity with the contract and, according to the 
first sentence of recital 21, Directive 1999/44 includes rules on guarantees 
because, for certain categories of goods, it is current practice for sellers and 
producers to offer guarantees on goods against any defect which becomes 
apparent within a certain period, from which it follows that the specifications 
concern the condition of the item purchased according to the contract. 
17 The same follows from Article 2, point 12, of Directive 2019/771, which states 
that a guarantee may cover both specifications of the goods and any other 
requirements not related to conformity. This additional criterion suggests that the 
specifications which substantiate the guarantee relate in fact to the item purchased 
and determine its conformity. That is not precluded by the fact that, according to 
Article 6 of Directive 2019/771, subjective requirements for conformity may 
render the goods non-conform, as the criteria listed in the contract concern 
objective circumstances relating to the item purchased itself. 
18 b) The referring court has doubts, in the light of EU law, as to whether the 
consumer’s satisfaction with the item purchased falls under ‘any other 
requirements not related to conformity’ within the meaning of Paragraph 443(1), 
second instance, of the BGB/Article 2, point 14, of Directive 2011/83 or ‘any 
other requirements not related to conformity’ (Article 2, point 12, of Directive 
2019/771) which are covered by a guarantee and therefore trigger the information 
requirements under Paragraph 479(1), second sentence, of the BGB. 
19 (1) The national legislature included the criterion ‘any other requirements not 
related to conformity’ in the version of Paragraph 443(1) of the BGB that entered 
into force on 13 June 2014 in order to transpose the definition of commercial 
guarantee in Article 2, point 14, of Directive 2011/83. At the same time, it took 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-133/22 
 
6  
the decision to create a standard definition of guarantee in order to transpose, first, 
Article 1(2)(e) of Directive 1999/44 and, second, Article 2, point 14, of Directive 
2011/83. For that purpose, it extended the national definition of guarantee beyond 
the requirements of Article 1(2)(e) of Directive 1999/44, thereby extending the 
scope of the information requirements enacted in the old version of 
Paragraph 479(1), second sentence, of the BGB. 
20 (2) (aa) However, inasmuch as the criterion ‘any other requirements not related to 
conformity’ has no basis in Directive 1999/44, the interpretation is predicated on 
national law. There is no need in principle to interpret a national rule which lies 
outside the scope of a directive in conformity with the directive (judgment of 
16 July 1998, ICI, C-264/96, EU:C:1998:370, paragraph 34). However, regard 
must be had to the decision taken by the national legislature during the 
transposition of Directive 2011/83 to create a standard definition of guarantee by 
making a standard interpretation predicated on the definition of guarantee in 
Article 2, point 14, of Directive 2011/83. It is for that purpose that a ruling by the 
Court is required on the interpretation of the criterion ‘any other requirements not 
related to conformity’ in Article 2, point 14, of Directive 2011/83, in order to 
ensure the definition in national law is in keeping with EU law. 
21 (bb) An interpretation of the criterion ‘any other requirements not related to 
conformity’ in keeping with EU law is also required for the purpose of 
establishing whether the definition of guarantee in Paragraph 443(1) of the BGB 
has also served since 1 January 2022 to transpose Article 2, point 12, of Directive 
2019/771. The criterion ‘any other requirements not related to conformity’ in 
Article 2, point 12, of Directive 2019/771 is identical in content to the criterion 
‘any other requirements not related to conformity’ in Article 2, point 14, of 
Directive 2011/83. 
22 (3) The question that arises is whether ‘any other requirements not related to 
conformity’ can apply where circumstances specific to the consumer, in particular 
his or her subjective attitude towards the item purchased (in this case, the 
consumer’s personal satisfaction with the item purchased) have a bearing on the 
obligation of the guarantor, without it being necessary that those personal 
circumstances need not relate to the condition or features of the item purchased. 
That is the subject matter of Question 1. 
23 (aa) It is not absolutely clear from the wording of the provisions of the directives 
whether the requirements must be based on objective properties of the item 
purchased or may also concern the consumer’s subjective attitude towards the 
product purchased. The first meaning might be supported by the fact that the 
goods must fulfil those requirements. The second meaning might be suggested by 
the fact that the requirements may follow from the guarantor’s specifications. Any 
such specifications may, in principle, concern both the item purchased itself and 
the buyer’s personal attitude towards the item purchased. 
LACD 
 
7 
24 (bb) Nor does an unequivocal interpretation follow from the correlation between 
the rules. The criterion ‘any other requirements not related to conformity’ in 
Article 2, point 14, of Directive 2011/83 or the criterion ‘any other requirements 
not related to conformity’ in Article 2, point 12, of Directive 2019/771 is listed as 
an additional criterion covered by the guarantee in addition to the ‘specifications’. 
On the one hand, that does not preclude an interpretation that the requirements 
concern circumstances which, like the nature of the item, relate to objective 
properties of the item purchased, but which, like features of its nature that occur in 
the future, for example, do not substantiate a defect. On the other hand, that 
criterion may be understood as a delimitation criterion, meaning that, unlike a 
specification, the requirements need not relate to objective properties of the item 
purchased, but may, like the buyer’s personal dissatisfaction with the product 
purchased, also concern circumstances specific to the buyer and thus relate both to 
the item and to the person. 
25 The fact that the EU legislature has used the term ‘requirements’ in Articles 6 and 
7 of Directive 2019/771 does not support an unequivocal interpretation in either 
sense. That may mean that both objective requirements (Article 7) and subjective 
requirements (Article 6) determine the conformity of the goods. Although the 
subjective requirements likewise relate to features of the item purchased, that does 
not automatically suggest that the requirements for the item purchased must have 
the same reference point within the framework of the definition of guarantee in 
Article 2, point 12, of Directive 2019/711 (and the definition of guarantee in 
Article 2, point 14, of Directive 2011/83). 
26 (cc) The aim of the rules enacted by Directives 2011/83 and 2019/771 might 
suggest a broad interpretation of the criterion ‘any other requirements not related 
to conformity’ that includes circumstances specific to the buyer. They, like 
Directive 1999/44, serve to achieve a high level of consumer protection 
(recital 65, first sentence, of Directive 2011/83; recital 10, fourth sentence, of 
Directive 2019/771; recital 1 of Directive 1999/44). Even where the consumer’s 
dissatisfaction or other circumstances specific to them have a bearing on the 
guarantee claim, consumers require the information stipulated in the directives in 
order to know the scope of their statutory rights and establish whether they have a 
guarantee claim, what rights they have by reason of the guarantee and how those 
rights can be asserted. 
27 (4) Inasmuch as circumstances specific to the consumer (in this case, the 
consumer’s satisfaction with the goods purchased) are requirements which may be 
covered by a guarantee within the meaning of Article 2, point 14, of Directive 
2011/83 and Article 2, point 12, of Directive 2019/771, the question arises as to 
whether it must be possible to establish the absence of such subjective 
requirements based on objective circumstances. That is the subject matter of 
Question 2. 
28 The Chamber is inclined to answer that question in the negative. A guarantee 
claim also exists where the seller or producer is unable to verify, based on 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-133/22 
 
8  
objective circumstances, whether the goods fall below the buyer’s subjective 
requirements. However, that makes it easier for consumers to use a guarantee 
claim as a pretext for asserting their rights under the guarantee. That means, in the 
final analysis, that they can exercise the rights under the guarantee at their 
discretion, even where the preconditions to a guarantee claim (in this case, the 
consumer’s personal dissatisfaction with the item purchased) are not actually 
fulfilled. However, the guarantor does not appear to warrant protection in that 
regard. It is still at liberty to link its obligation with regard to the guarantee claim 
to quantifiable preconditions, such as a clear statement of reasons as to why the 
consumer is dissatisfied with the item purchased. 
29 6. The answers to the questions referred will enable judgment to be given. 
30 a) If the defendant’s promise on the hangtags attached to its T-shirts is not a 
guarantee statement within the meaning of Paragraph 443(1) of the BGB, the 
defendant has not infringed Paragraph 479(1), second sentence, of the old version 
of the BGB and is therefore not in breach of any market conduct rules within the 
meaning of Paragraph 3a of the UWG, in which case the proceedings have 
reached the stage at which final judgment can be given and the Chamber would 
have to set aside the judgment on appeal inasmuch as it found against the 
defendant, and dismiss the applicant’s appeal. 
31 b) If, on the other hand, the defendant’s assurance that the customer can return the 
product purchased if dissatisfied with it is a guarantee of any other requirements 
not related to conformity within the meaning of Paragraph 443(1), second 
instance, of the BGB, its information would not fulfil the information 
requirements enacted under Section 479(1), second sentence, of the BGB, in 
which case, the defendant would be guilty of an unfair commercial practice within 
the meaning of Paragraph 3(1) of the UWG, which is penalised as a breach of law 
under Paragraph 3a of the UWG on the grounds of infringement of the market 
conduct rule laid down in Paragraph 479(1), second sentence, of the old version of 
the BGB and imminent infringement of Paragraph 479(1), second sentence, of the 
new version of the BGB. Directive 2005/29/EC would not preclude any such 
penalty under the law on unfair practices: the contractual information 
requirements enacted in Paragraph 479(1), second sentence, of the BGB do not 
fall within the scope of Article 7(5) or recital 15 of Directive 2005/29, as they are 
not requirements in relation to commercial communication in that sense. 
‘Commercial communication’ means any form of communication designed to 
promote, directly or indirectly, the goods, services or image of a company, 
organisation or person pursuing a commercial, industrial or craft activity or 
exercising a regulated profession (judgment of 14 July 2016, Verband Sozialer 
Wettbewerb, C-19/15, EU:C:2016:563, paragraphs 25 and 26). If it does not 
promote the goods or the image of a company, commercial communication does 
not as a rule include information requirements that serve other purposes or have to 
be fulfilled during the conclusion or performance of a contract. 
LACD 
 
9 
32 That notwithstanding, recital 15, sixth sentence, of Directive 2005/29 permits 
penalties for infringements of national contractual information requirements, even 
where, as with the provision of Paragraph 479(1), second sentence, of the old 
version of the BGB on information requirements for a guarantee for any other 
requirements not related to conformity, they go beyond the minimum 
requirements under EU law. Such penalties are possible both within the 
framework of the consumer’s contractual claims and under the law on unfair 
practices as a breach of law under Paragraph 3a of the UWG. As, according to 
Article 3(2) of Directive 2005/29, the contractual information requirements fall 
outside the scope of the directive, it cannot give rise to any blocking effect.