Opinion of the Advocate General — ECLI:EU:C:2010:274
Date: 2010-05-18
Language of the case: German
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Consumer protection – Sale of consumer goods and associated guarantees – Consumer rights – Goods supplied not in conformity with the contract – Restoring the goods to conformity requiring replacement (European Parliament and Council Directive 1999/44, first recital and Art. 3(2) and (3)) 2. Approximation of laws – Consumer protection – Sale of consumer goods and associated guarantees – Consumer rights – Goods supplied not in conformity with the contract – Restoring the goods to conformity requiring replacement (European Parliament and Council Directive 1999/44, Art. 3(3) and (5), last indent) 1. On a proper construction of Article 3(2) and (3) of Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees, when consumer goods not in conformity with the contract that were installed in good faith by the consumer in a manner consistent with their nature and purpose, before the defect became apparent, are restored to conformity by way of replacement, the seller is obliged either to remove those goods from where they were installed and to install the replacement goods there or else to bear the cost of that removal and installation of the replacement goods. That obligation for the seller exists regardless of whether he was obliged under the contract of sale to install the consumer goods originally purchased. Such an interpretation is consistent with the purpose of the Directive, which, as stated in recital 1 in its preamble, is to ensure a high level of consumer protection. Thus, in a situation in which neither party to the contract is at fault, it is justified to make the seller bear the cost of removing the goods not in conformity and installing the replacement goods, since those additional costs, first, would have been avoided if the seller had at the outset correctly performed his contractual obligations and, second, are now necessary to bring the goods into conformity. If the seller does not himself remove the goods not in conformity and install the replacement goods, it is for the national court to determine the costs necessary for removal and installation, for which the consumer may claim reimbursement. (see paras 55, 57, 61-62, operative part 1) 2. Article 3(3) of Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees must be interpreted as precluding national legislation from granting the seller the right to refuse to replace goods not in conformity, as the only remedy possible, on the ground that, because of the obligation to remove the goods from where they were installed and to install the replacement goods there, replacement imposes costs on him disproportionate with regard to the value that the goods would have if there were no lack of conformity and to the significance of the lack of conformity. That provision does not, however, preclude the consumer’s right to reimbursement of the cost of removing the defective goods and of installing the replacement goods from being limited, in such a case, to the payment by the seller of a proportionate amount. In considering whether it is appropriate to reduce the consumer’s right to reimbursement of those costs, the referring court will have to bear in mind, first, the value the goods would have if there were no lack of conformity and the significance of the lack of conformity, and secondly, the Directive’s purpose of ensuring a high level of protection for consumers. In addition, if the right to reimbursement of those costs is reduced, the consumer should be able to request, instead of replacement of the goods not in conformity, an appropriate price reduction or rescission of the contract, pursuant to the last indent of Article 3(5) of the Directive, given that the fact that a consumer cannot have the defective goods brought into conformity without having to bear part of these costs constitutes significant inconvenience for the consumer. (see paras 76-78, operative part 2)