62016CC0133
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 6 April 2017 (
1
)
Case C‑133/16
Christian Ferenschild
v
JPC Motor SA
(Request for a preliminary ruling from the Cour d’appel de Mons (Court of Appeal, Mons, Belgium))
(Reference for a preliminary ruling — Consumer protection — Directive 1999/44/EC — Second-hand goods — Consumer rights in the event of lack of conformity of the goods with the contract — Period of liability for lack of conformity of the goods with the contract — Limitation periods)
I. Introduction
1.
By the present reference for a preliminary ruling, the Cour d’appel de Mons (Court of Appeal, Mons, Belgium) seeks to clarify whether the rule laid down in the second sentence of Article 5(1) of Directive 1999/44, (
2
) under which the limitation period (
3
) for claims arising from lack of conformity of the goods with the contract may not expire within a period of two years from the time of delivery, also applies to consumer trade in second-hand goods.
2.
In answering the question referred by the national court, the Court will be able to clarify whether and to what extent the protection covers a consumer who purchases second-hand goods. The expiry of the limitation periods to which the request for a preliminary ruling relates may result in the right being cancelled or impossible to exercise. If the consumer has a right but cannot exercise it, he might have more of a problem than if he did not have that right at all. (
4
)
II. Legal framework
A. European Union law
3.
Recitals 16 and 17 of Directive 1999/44 state:
‘(16)
Whereas the specific nature of second-hand goods makes it generally impossible to replace them; whereas therefore the consumer’s right of replacement is generally not available for these goods; whereas for such goods, Member States may enable the parties to agree a shortened period of liability;
(17)
Whereas it is appropriate to limit in time the period during which the seller is liable for any lack of conformity which exists at the time of delivery of the goods; whereas Member States may also provide for a limitation on the period during which consumers can exercise their rights, provided such a period does not expire within two years from the time of delivery; whereas where, under national legislation, the time when a limitation period starts is not the time of delivery of the goods, the total duration of the limitation period provided for by national law may not be shorter than two years from the time of delivery’.
4.
Article 2 of the directive, entitled ‘Conformity with the contract’, provides in paragraph 1 that:
‘The seller must deliver goods to the consumer which are in conformity with the contract of sale.’
5.
The consequences of such lack of conformity were set out in Article 3 of Directive 1999/44, entitled ‘Rights of the consumer’, paragraphs 1 and 2 of which provide:
‘1.   The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.
2.   In the case of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement, in accordance with paragraph 3, or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods, in accordance with paragraphs 5 and 6.’
6.
Paragraph 1 of Article 5 of the directive, entitled ‘Time limits’, in turn provides that:
‘The seller shall be held liable under Article 3 where the lack of conformity becomes apparent within two years as from delivery of the goods. If, under national legislation, the rights laid down in Article 3(2) are subject to a limitation period, that period shall not expire within a period of two years from the time of delivery.’
7.
Under Article 7(1) of Directive 1999/44:
‘Any contractual terms or agreements concluded with the seller before the lack of conformity is brought to the seller’s attention which directly or indirectly waive or restrict the rights resulting from this Directive shall, as provided for by national law, not be binding on the consumer.
Member States may provide that, in the case of second-hand goods, the seller and consumer may agree contractual terms or agreements which have a shorter time period for the liability of the seller than that set down in Article 5(1). Such period may not be less than one year.’
B. Belgian law
8.
Article 1649 quater of the code civil (the Belgian civil code), incorporated into the Belgian legal order by the Law of 1 September 2004, (
5
) implements Articles 3(1), 5(1) and 7(1) of Directive 1999/44. Under that provision:
‘1. The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered and which becomes apparent within two years of their delivery.
…
By way of derogation from the first subparagraph, the seller and the consumer may, for second-hand goods, agree on a period shorter than two years; such period may not be less than one year.
…
3. Actions by the consumer shall be brought within a period of one year from the day on which the consumer detected the lack of conformity; such limitation period may not expire before the end of the two-year period provided for in paragraph 1.’
III. The main proceedings
9.
On 21 September 2010, Christian Ferenschild purchased from JPC Motor SA (‘JPC’) a used Volvo car for EUR 14000.
10.
On 22 September 2010, Mr Ferenschild was refused registration of that vehicle because it was listed in the Schengen Information System as a stolen vehicle.
11.
It ultimately became apparent that the motor vehicle which Mr Ferenschild purchased had never been stolen. However, the vehicle’s documents had been stolen in 2007 in order to serve as a ‘cover’ for a similar vehicle of fraudulent origin in Italy.
12.
On 7 January 2011, Mr Ferenschild’s vehicle was registered.
13.
On 12 March 2012, Mr Ferenschild brought proceedings against JPC before the tribunal de commerce de Mons (Commercial Court, Mons, Belgium), seeking an order for the payment of the sum of EUR 5499.83, being EUR 2000 for loss resulting from overpayment for the vehicle, EUR 2999.83 for the cost of renting a replacement vehicle from 21 September 2010 to 14 January 2011, and EUR 500 for administrative charges and other expenses.
14.
The tribunal de commerce de Mons (Commercial Court, Mons) dismissed the claim in its entirety.
15.
Following an appeal brought by Mr Ferenschild, the Cour d’appel de Mons (Court of Appeal, Mons) ruled that the vehicle had lacked conformity within the meaning of the provisions of the Belgian civil code which implement Directive 1999/44. However, it found that this lack of conformity appeared to have been resolved by the vehicle’s registration. At the same time, the Cour d’appel ordered, of its own motion, that the hearing be reopened in order to allow the parties to make submissions on the time-barring of the action and the extent of the damage.
16.
In its reference for a preliminary ruling, the national court indicates that it has doubts as to the time-barring of claims arising from the lack of conformity of the vehicle purchased by Mr Ferenschild.
17.
According to the findings of the referring court, Mr Ferenschild collected the vehicle on 21 September 2010, detected the defect on 22 September 2010 and brought proceedings on 12 March 2012.
18.
Under Belgian law, actions by the consumer arising from a lack of conformity must in principle be brought within a period of one year from the day on which the lack of conformity of the goods with the contract is detected by the consumer (paragraph 3 of Article 1649 quater of the Belgian civil code).
19.
Since the proceedings were brought on 12 March 2012, almost 17 months after the lack of conformity was detected, the action brought by Mr Ferenschild should be regarded as time-barred. (
6
)
20.
Paragraph 3 of Article 1649 quarter of the Belgian civil code cited above provides, in extenso, that actions by the consumer arising from a lack of conformity must be brought within a period of one year from the day of its detection by the consumer, but this may not be before the end of the two-year period referred to in paragraph 1 of Article 1649 quater of that code.
21.
This could lead to the conclusion that an action brought on 12 March 2012 was not yet time-barred. The two-year period from the time of delivery had not expired by that date.
22.
In implementing the second subparagraph of Article 7(1) of Directive 1999/44, the Belgian legislature provided, in the third subparagraph of paragraph 1 of Article 1649 quarter of the Belgian civil code, that the parties to a contract for the sale of second-hand items may agree on an shorter period of liability for lack of conformity, but that period may not under any circumstances be less than one year.
23.
In the present case, the parties entered into such an agreement by accepting that the seller would bear liability for lack of conformity of the goods with the contract for a period of one year as from delivery.
24.
The referring court noted that, according to the interpretation in the spirit of which the work on implementing Directive 1999/44 was carried out, in the event of an agreement by the parties on a liability period of less than two years (for example, one year), the reference to paragraph 1 (‘such period may not expire before the end of the two-year period provided for in paragraph 1’) made in paragraph 3 of Article 1649 quater of the Belgian civil code is to be understood as meaning a period of one year.
IV. The question referred and the procedure before the Court
25.
In those circumstances, the Cour d’appel de Mons (Court of Appeal, Mons) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 5(1) 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, in conjunction with the second subparagraph of Article 7(1) thereof, be interpreted as precluding a provision of national law which is interpreted as allowing, for second-hand goods, the limitation period for action by the consumer to expire before the end of the two-year period as from delivery of goods which are not in conformity with the contract, where the seller and the consumer have agreed on a guarantee period of less than two years?’
26.
The request for a preliminary ruling was received at the Court on 4 March 2016.
27.
Written observations have been submitted by Mr Ferenschild, the Belgian Government, the Austrian Government and the Commission.
V. Analysis
28.
By its question, the national court seeks to clarify whether Articles 5(1) and 7(1) of Directive 1999/44 preclude an interpretation of the provisions of national law which – for second-hand goods – allow the limitation period to expire before the end of the two-year period as from delivery of goods if the parties have agreed that the period of liability for lack of conformity – in principal two years as from delivery of the goods – is to be limited to one year.
29.
Providing the referring court with a useful answer essentially means opting for one of two possibilities.
30.
The first supposes that the period of liability of the seller for the lack of conformity, as referred to in the first sentence of Article 5(1) of Directive 1999/44, determines the period before which the ‘limitation period’ referred to in the second sentence of Article 5(1) of Directive 1999/44 cannot expire. Therefore, limiting the first entails limiting the second.
31.
The second possibility essentially supposes that the rule under which the ‘limitation period’ for actions arising from a lack of conformity may not expire under any circumstances before the end of a period of two years from the time of delivery of the goods is an element of the minimum model of consumer protection under Directive 1999/44 – including, in so far as it concerns them, in relation to second-hand goods. Therefore, even agreement by the parties that the seller’s liability – in the case of second-hand items – concerns a lack of conformity detected within a year of the time of delivery does not mean that the limitation period may expire before the end of a period of two years from that date.
A. Admissibility of the question referred
32.
Before going any further, I would like to make a few preliminary remarks. The particular nature of the lack of conformity affecting Mr Ferenschild’s vehicle means that whether this case falls within the scope of Directive 1999/44 is open to question. Although it will be clear from the conclusion set out below that these concerns are unfounded, the considerations on this matter may nevertheless be relevant to the national court if it were to find that the directive, at least directly, does not govern the situation to which the facts of this case relate.
33.
The referring court notes that, in order to avoid a claim that the action is time-barred, Mr Ferenschild relied on the provisions concerning liability for a hidden defect (vice caché) only after the hearing was re-opened, as is apparent from the information contained in the reference for a preliminary ruling.
34.
In some legal systems, including under Belgian law – in addition to liability for lack of conformity within the meaning of Article 3 of Directive 1999/44 – there is also liability for ‘hidden defects’. (
7
) However, the national court held that even if the action brought by Mr Ferenschild had been founded on an alternative legal basis, it would in any event have been out of time.
35.
It should be left to the national court to assess the effects of the procedural acts carried out by a party on the basis of national rules of procedure. However, the national court found that the answer given by the Court will be essential for it in deciding on the case. Therefore, I understand the referring court’s position to be that merely referring to another legal basis did not bring about a change to the action which would preclude the application of the provisions implementing the directive. The remainder of the reference for a preliminary ruling related solely to the interpretation of the provisions of the directive.
36.
I should also note that Directive 1999/44 does not introduce a clear distinction between liability arising from failure to fulfil the obligation to deliver goods conforming to the contract and liability for failure to fulfil the obligation to deliver goods free of hidden defects. (
8
) Within the framework of the model adopted in the directive, both of those categories are regarded as cases of lack of conformity as referred to in Article 3 of that directive. (
9
)
37.
Nor do I believe there are other grounds to conclude that the reference for a preliminary ruling does not concern EU law. Even if it were assumed that Directive 1999/44 does not relate to legal defects, and that the transfer to the buyer of the vehicle together with the documents which served as a ‘cover’ for a similar model could be regarded as such, the question referred would, in my view, still be admissible.
38.
In some Member States, in addition to physical defects, a particular case of unlawfulness of a sold item, which is termed a ‘legal defect’ (défaut juridique, Rechtsmängel), is identified. However, sometimes the legislatures do not attach any normative effects to that distinction, which means that it is difficult to draw a line between a physical defect and a legal defect. There are also instances where that distinction is solely of a doctrinal nature. In any event, the occurrence of a legal defect generally concerns a situation where the sold item is the property of a third party or encumbered by a right of a third party. (
10
)
39.
I am not convinced that the present case concerns a legal defect thus construed. Moreover, I doubt whether the directive does not relate to legal defects within the above meaning of the concept.
40.
However, I do share the view of the referring court which found that this case involves a lack of conformity of the goods with the contract within the meaning of Article 3 of Directive 1999/44. The directive places on the seller an obligation to supply goods in conformity with the contract, which must also be understood as supplying an item in a condition which allows it to be used in accordance with its intended purpose. (
11
) The inability to register a motor vehicle generally makes it impossible to make normal use thereof.
41.
Nonetheless, even assuming that, in this case, the vehicle did have a legal defect and that it would not be covered by the concept of ‘non-conformity of the goods with the contract’ within the meaning of Directive 1999/44, the Court should still find that it has jurisdiction to answer the question referred by the national court. The Belgian legislature was allowed to adopt the approaches provided for in the directive also to define the rights of the consumer in cases not covered by the directive itself. The need to ensure the uniform interpretation of EU law, regardless of the circumstances in which it is applied, suggests – according to the case-law commencing with the judgment of the Court in Dzodzi (
12
) – that the present reference for a preliminary ruling is admissible. (
13
)
42.
In the light of the above considerations, I consider that the reference for a preliminary ruling from the Cour d’appel de Mons (Court of Appeal, Mons) is admissible. I can therefore continue, but before I do, I would like to make certain preliminary remarks. I believe that they will enable the Court to assess this case more fully.
B. Preliminary remarks
43.
The rules on the liability of the seller for lack of conformity of the goods with the contract which were laid down in Directive 1999/44 are a fundamental element of the EU system of consumer protection.
44.
Although that directive was based on the model of minimum harmonisation, it nevertheless contributed to the achievement of a high level of consumer protection in all the Member States. It thus enabled one of the main objectives of EU policy to be fulfilled. (
14
)
45.
Article 3(1) of Directive 1999/44, read in conjunction with Article 2(1) thereof, is an expression of the principle of pacta sunt servanda. Under those provisions, the seller is to be liable for any lack of conformity of the goods with the contract, provided that it existed at the time the goods were delivered. That principle is not changed by the discovery of a defect at a later date. The date on which the goods were delivered continues to be decisive in assessing whether or not there has been a lack of conformity.
46.
Within the framework of the rules on the liability of the seller, it is necessary to distinguish two instruments linked to the passage of time, namely the period of liability for lack of conformity and the period within which it is possible to exercise rights for lack of conformity, also known as a limitation period (délai de prescription, Verjährungsfrist).
47.
The period to which the first sentence of Article 5(1) of Directive 1999/44 relates sets a time frame within which the lack of conformity must become apparent. A finding of non-conformity after that period expires will not render the seller liable.
48.
The limitation period referred to in the second sentence of Article 5(1) of Directive 1999/44, however, sets a time limit by which the consumer may exercise his rights vis-à-vis the seller for lack of conformity of the goods with the contract.
49.
Therefore, the provisions defining the start and the end of the period of liability answer the question as to when the lack of conformity must become apparent in order for the purchaser to have specific rights in relation to the seller on account of that lack of conformity. The rules on limitation periods determine by when, at the latest, a consumer may exercise the rights which arose during the period of liability.
C. Differences between periods of liability and limitation periods within the framework of the model of consumer protection laid down in Directive 1999/44
50.
Under the provisions of Directive 1999/44, the period for the liability of the seller for lack of conformity of the goods with the contract and the period referred to in the second sentence of Article 5(1) of the directive pursue different aims.
51.
The first sentence of Article 5(1) of Directive 1999/44 provides that ‘[t]he seller shall be held liable under Article 3 where the lack of conformity becomes apparent within two years as from delivery of the goods.’ (
15
) The second sentence of Article 5(1), however, introduces a rule concerning limitation periods whereby ‘[i]f, under national legislation, the rights laid down in Article 3(2) are subject to a limitation period, that period shall not expire within a period of two years from the time of delivery’.
52.
Directive 1999/44 requires that be laid down a period of at least two years for liability of the seller for lack of conformity. In that respect, it leaves to the national legislators the decision as to the time limit within which consumers may exercise rights relating to such lack of conformity through the introduction of limitation periods. The directive does not interfere even in the duration of those periods. However, if they are laid down, then – under the second sentence of Article 5(1) of Directive 1999/44 – they may not expire within a period of two years from the time of delivery.
53.
The absence of a link between those periods is, in my view, established by the very wording of the second sentence of Article 5(1) of the directive. That provision does not link the limitation period to the period of liability referred to in the first sentence of Article 5(1), but to a period of two years from the time of delivery. The second sentence of Article 5(1) of Directive 1999/44 makes no reference at all to the first sentence thereof, which concerns the period for the liability of the seller for lack of conformity.
54.
This line of argument is also confirmed by recital 17 of the directive where the stipulation regarding the two-year period relating to limitation periods appears twice: first, in a more general context, confirming that such periods may be introduced in national legislation, and, secondly, in relation to a case where the national legislature has decided to link the beginning of that period to a moment in time other than the time of receipt of the goods.
55.
I am aware that the similarity between the minimum durations of the periods of liability and limitation, which in principle may not expire before the end of a period of two years from the time of delivery, may lead to the conclusion that there is a close link between them.
56.
However, I should point out that the two-year period for the liability of the seller for lack of conformity constituted a compromise intended to reconcile the various approaches taken in that regard by the individual Member States. (
16
) Nonetheless, it was assumed that — although that period is shorter by far than the periods fulfilling a similar function laid down in the law of certain Member States — in view of the model of minimum harmonisation adopted, it would be sufficient to define the desired level of consumer protection. (
17
)
57.
The actual duration of the period of liability, to which the first sentence of Article 5(1) of Directive 1999/44 relates, was modelled on the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, (
18
) Article 39(2) of which states ‘[i]n any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time limit is inconsistent with a contractual period of guarantee’.
58.
The convention model – which was the inspiration for the European legislature – is not based on the assumption that actions brought by the buyer may not be time-barred before the expiry of the period of liability. (
19
)
59.
Moreover, I do not think that the European legislature sought to link those periods on the assumption that actions could not be time-barred before the liability ceased. There is a link between the periods of liability and the periods of limitation only insomuch as an action must – in order to be capable of being time-barred – be brought during the period of liability. However, there is nothing to justify the opposite. Nor do the provisions of the directive assume the opposite.
60.
In trying to explain the duration of the period adopted in Directive 1999/44 before the expiry of which an action cannot be time-barred, it may merely be surmised that a two-year period was regarded as sufficient to afford consumers a minimum level of protection.
61.
In the light of the above considerations, I am convinced that the rule under which actions brought by a consumer for lack of conformity of the goods with the contract may not be time-barred before the end of a period of two years from the time of delivery, is an element of consumer protection guaranteed by EU law.
D. Interpretation of the second subparagraph of Article 7(1) of Directive 1999/44 as a provision of an exceptional nature
62.
I am convinced that the second subparagraph of Article 7(1) of Directive 1999/44, which provides that the liability period may be shorter for second-hand goods, does not justify a different interpretation.
1.
Scope of the reference set out in the second subparagraph of Article 7(1) of Directive 1999/44
63.
The interpretation of the second subparagraph of Article 7(1) of Directive 1999/44, under which ‘Member States may provide that, in the case of second-hand goods, the seller and consumer may agree contractual terms or agreements which have a shorter time period for the liability of the seller than that set down in Article 5(1)’ and ‘[s]uch period may not be less than one year’, is of key relevance to this reference for a preliminary ruling.
64.
In its written observations, the Commission admittedly noted that the reference in the second subparagraph of Article 7(1) to the ‘period’ set down in Article 5(1) is rather unfortunate as it does not define clearly the periods to which it relates. It is not known whether it refers to the period during which the lack of conformity must become apparent (first sentence of Article 5(1)) or the limitation period (second sentence of Article 5(1)). (
20
)
65.
In some language versions of the directive, the second subparagraph of Article 7(1) provides for the possibility of shortening the periods of liability of the seller (la responsabilité du vendeur, responsabilità del venditore). The same expressions were used in the first sentence of Article 5(1) of the directive in relation to the periods within which the lack of conformity of the goods must become apparent. (
21
) Therefore, I have no doubt that the second subparagraph of Article 7(1) of the directive concerns only the periods of liability referred to in the first sentence of Article 5(1) and not the limitation periods to which the second sentence of Article 5(1) relates.
66.
This view is also supported by an analysis of the legislative process which led to the adoption of Directive 1999/44. According to the settled case-law of the Court, the origins of a provision of EU law may also provide information relevant to its interpretation. (
22
)
67.
The original draft of the directive (
23
) did not contain provisions concerning the trade in second-hand goods.
68.
At that stage, a uniform two-year period for the liability of the seller which related to all goods covered by the scope of the directive was put forward.
69.
During the further preparatory work, the Economic and Social Committee noted that the two-year period for the liability of the seller could on occasion be too long because of the particular properties of the good purchased (‘la nature particulière du bien vendu’). The Committee proposed that — by way of derogation from the two-year period — the parties concerned could limit the period of liability (‘la durée de cette garantie’) to one year. (
24
)
70.
Finally, in the common position, the Council and the Parliament opted for an approach in keeping with that spirit which – in relation to second-hand items – permits contractual limitation of the period set down in Article 5(1) of the directive, provided that such a possibility is permitted in national law. However, that period may not be less than one year (second subparagraph of Article 7(1)). Both in the drafting history, (
25
) and recital 16 of the adopted text of Directive 1999/44, that derogation is justified by the specific nature of second-hand goods (‘tenir compte de leur spécificité’).
71.
I consider that this is a reference to the position of the Committee, which explained the incorporation of a similar rule by the need to differentiate between the periods of liability having regard to the particular nature of certain goods. I am convinced that the rule laid down in the second subparagraph of Article 7(1) concerns the period of liability referred to in the first sentence of Article 5(1), in line with the amendments initiated by the proposal of the Economic and Social Committee which concerned the periods of liability of the seller (‘la durée de […] garantie’).
72.
My interim conclusion is therefore that – under the second subparagraph of Article 7(1) of Directive 1999/44 – the national legislatures may introduce rules which, in relation to the sale of second-hand goods, allow the parties concerned to limit to one year only the period of liability referred to in the first sentence of Article 5(1) of that directive.
2.
Interpretation of the second subparagraph of Article 7(1) of Directive 1999/44
73.
In the light of the first sentence of Article 5(1) of Directive 1999/44, the two-year period for the liability of the seller for lack of conformity constitutes a fundamental element of the minimum level of consumer protection guaranteed by EU law. The parties concerned cannot restrict or waive that period, as is clear from the first subparagraph of Article 7(1) of the directive.
74.
However, by way of exception, the Member States are entitled to lay down in national law a rule under which the parties concerned may agree a shorter time period for the liability of the seller in the case of second-hand goods. Such period may nevertheless not be less than one year (second subparagraph of Article 7(1)).
75.
Therefore, the second subparagraph of Article 7(1), which allows shorter periods for the liability of the seller for lack of conformity to be laid down, should, as a provision of an exceptional nature, be subject to a strict interpretation which may not go beyond what is necessary to attain the objective for which that provision was laid down. (
26
)
76.
Since, by way of exception, it is left to decisions of national legislatures to allow the parties concerned to agree shorter periods of liability, it is not possible to expand that entitlement so as to include the possibility of interfering in the rules on the period of limitation to which the second sentence of Article 5(1) relates. Therefore, national law may not allow the parties to a contract of sale to exclude the rule under which the limitation period for consumer rights may not expire before the end of a period of two years from the time of delivery.
77.
I consider that the directive also precludes the adoption of other approaches which produce similar results. In particular, the requirement that the second subparagraph of Article 7(1) of Directive 1999/44 be interpreted strictly precludes the time at which the limitation period may expire being linked to the period of liability where the latter may be limited to one year by the parties themselves.
78.
Those considerations lead me to conclude that the exceptional nature of the second subparagraph of Article 7(1) of Directive 1999/44 precludes an interpretation of the provisions of national law which would lead to an infringement of the rule under which the limitation period may not expire before the end of a period of two years from the time of delivery of the goods.
E. Objective of the exception laid down in the second subparagraph of Article 7(1) of Directive 1999/44
79.
I do not consider that it is necessary to adopt an interpretation of the exception laid down in the second subparagraph of Article 7(1) of Directive 1999/44 which is broader and different from that set out above, bearing in mind the objective pursued by that provision.
1.
The exception laid down in the second subparagraph of Article 7(1) of the directive and contractual balance
80.
It is clear from the remarks made at points 69 and 70 of this Opinion that the second sentence of Article 7(1) of the directive allows the specific nature of second-hand goods to be taken into account.
81.
In my view, what underlies this objective is primarily an attempt to balance the interests of the seller and the buyer in such a way that the scope of the liability of the seller is not disproportionate to the nature of goods on the second-hand market. An analysis of recital 17 of the directive leads me to conclude that the very introduction of a two-year period of liability was motivated by a concern that the liability of the seller could be shaped too broadly. That same argument must have had a bearing, in my view, on the adoption of an approach as regards second-hand goods which allows a further restriction on the liability of the seller.
82.
I therefore consider that the objective of the exception laid down in the second sentence of Article 7(1) of Directive 1999/44 is not so much to take account of the specific nature of second-hand goods but rather to enable the parties to manage contractual risk. The aim is to allow the parties – notwithstanding the conclusion of a contract for an item on the second-hand market – to depart from certain provisions of the directive. Requiring the parties to satisfy all the requirements laid down in the directive could hinder the development of the second-hand market. Maintaining a high level of consumer protection entails relatively high transaction processing costs. This may discourage undertakings from engaging in that type of activity. If those costs had to be included in the price and fell to the consumer, the market for second-hand goods would lose its essential feature which is the possibility of offering consumers attractively priced goods.
83.
Therefore, in upholding a high level of consumer protection, sight must not be lost of the fact that, for the internal market to develop, a balance must be maintained between the interests of the parties to the contract of sale. An argument to that effect is made by the Court, which, in interpreting the provisions of Directive 1999/44, recognises the need to protect the seller’s financial interests. (
27
)
84.
The question arises whether the objective of maintaining the desired balance between the interests of the parties to a contract of sale calls for an approach whereby limiting the period of liability entails limiting the two-year period before the expiry of which limitation periods may not expire.
85.
In my view, the answer to that question should be in the negative.
86.
In Directive 1999/44 itself there are a number of approaches which reflect the concern to maintain contractual balance. In addition to the two-year period of liability for lack of conformity referred to above, it is possible to list among them — as the Court recalled in its judgment in Quelle (
28
) — the option under Article 3(3) of refusing to replace the goods where that remedy would impose unreasonable costs on the seller. In its judgment in Gebr. Weber GmbH, the Court supplemented that list by clarifying that Article 4 of that directive confers on the seller a right of redress against the producer, a previous seller or any other intermediary. (
29
)
87.
Therefore, whilst the directive seeks to maintain contractual balance, depriving the consumer of all legal remedies is an extreme which the European legislature seeks to avoid.
88.
An analysis of the rules of the directive relating to second-hand goods leads to identical conclusions.
89.
Thus, I see in the directive itself – in addition to the possibility of shortening the period of liability – two further examples of approaches which may be relevant to goods on the second-hand market.
90.
Recital 16 of Directive 1999/44 notes that the specific nature of second-hand goods makes it generally impossible to replace them. In the provisions of the directive itself that idea is encapsulated in Article 3(3), under which the seller may refuse to replace the goods if this is impossible.
91.
Furthermore, under Article 5(3) of Directive 1999/44, it is possible to depart from the presumption that a lack of conformity which becomes apparent within six months of delivery of the goods existed at the time of delivery in so far as this presumption is incompatible with the nature of the goods. Even before the deadline for implementing the directive, it was noted in academic legal writings that that provision may apply to second-hand items. (
30
) The Belgian legislature also availed itself of this possibility. Paragraph 4 of Article 1649 quater of the Belgian civil code lays down a condition on ‘incompatibility [of the presumption] with the nature of the goods’ at the level of national law, adding that, in assessing that incompatibility regard must be had to whether the items concerned are new or second-hand.
92.
In any event, taking account of the specific nature of second-hand goods is not intended to deprive the consumer of the protection guaranteed to him, but merely to limit the list of rights which he enjoys (Article 3(3) of Directive 1999/44), or limit the easing of the burden of proof (Article 5(3)).
93.
Adopting an approach which assumes that limiting the period of liability entails limiting the period before the end of which the limitation periods may not expire, could, however, result in the consumer being entirely deprived of legal remedies before the end of a period of two years from the time of delivery of the goods.
94.
In the light of the above considerations, I consider that the need to take account of the interests of both parties to a contract of sale does not permit derogation from the rule under which an action brought by a consumer may not be time-barred before the end of a period of two years from the time of delivery of the goods.
2.
Taking account of the specific nature of second-hand goods as the direct objective of the exception laid down in the second subparagraph of Article 7(1) of Directive 1999/44
95.
As I have already indicated, laying down the exception in the second subparagraph of Article 7(1) of Directive 1999/44 was intended to allow the specific nature of second-hand goods to be taken into account.
96.
In its written observations, the Austrian Government submits that since that was the objective of incorporating the second subparagraph of Article 7(1) of the directive, it is necessary to link a shorter period of liability for a lack of conformity with the period before the expiry of which the consumer’s rights may not be time-barred. In developing that argument, it states that, having regard to the nature of second-hand items, which have already been used, first, the likelihood of a lack of conformity which exists at the time the item is received increases and, secondly, with the passage of time, it may prove more difficult to demonstrate that the non-conformity existed at that time.
97.
However, I do not think that these considerations justify the view that the period referred to in the second sentence of Article 5(1) of Directive 1999/44 should be linked to the period of liability for lack of conformity.
98.
Thus, as regards the increased likelihood of a lack of conformity becoming apparent, it is the very limitation of the liability of the seller, so that it concerns only defects which become apparent before the end of a period of one year of receipt, which takes sufficient account of the specific nature of second-hand goods. That liability – at least in the context of the increased likelihood of a defect becoming apparent with the passage of time – is nevertheless not extended by the stipulation relating to longer limitation periods. Only those rights which arose during the period of liability may be time-barred. However, the need to remove the seller’s uncertainty as to whether the consumer will opt to use the legal remedies available to him is a different matter.
99.
Nor am I convinced by the argument concerning the evidential difficulties arising with the passage of time.
100.
This case concerns relatively short periods. That is demonstrated by the circumstances of the case in the main proceedings where the one-year period as from the receipt of the goods was exceeded by just less than six months. (
31
)
101.
I also consider that the existence of the kind of evidential obstacles noted by the Austrian Government does not prejudice the seller’s interests. The passage of time exposes the consumer only to evidential difficulties in proving that there was non-conformity at the time of receipt of the goods. In relation to second-hand items, the consumer may ultimately encounter this kind of non-conformity in any event. For example, the second-hand nature of an item may mean that the consumer will be unable to rely on the presumption that the lack of conformity existed at the time of delivery of the goods, even if that lack of conformity becomes apparent within six months of delivery of the goods. (
32
)
102.
I therefore consider that the objective of maintaining a balance between the parties to the sale does not justify an interpretation of the provisions of Directive 1999/44 which would make the duration of the period referred to in the second sentence of Article 5(1) of that directive contingent on the duration of the period laid down in the first sentence of Article 5(1) where the latter is limited to one year by the parties themselves.
103.
In the light of the foregoing considerations, I am of the view that the rule under which the consumer may not be deprived of the possibility of exercising the rights which he enjoys vis-à-vis the seller in the event of lack of conformity of goods with the contract before the end of a period of two years from the time of delivery is an element of the minimum model of consumer protection under Directive 1999/44.
VI. Conclusions
104.
In the light of all the foregoing considerations, I propose that the Court answer the question from the Cour d’appel de Mons (Court of Appeal, Mons) as follows:
In accordance with the second sentence of Article 5(1) 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, the rule under which the consumer may not be deprived of the possibility of exercising the rights which he enjoys vis-à-vis the seller in the event of lack of conformity of goods with the contract before the end of a period of two years from the time of delivery is, including in relation to second-hand goods, an element of the minimum model of consumer protection guaranteed by EU law.
(
1
)	Original language: Polish.
(
2
)	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). That directive was amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights (OJ 2011 L 304, p. 64). However, it is to apply only to contracts concluded after 13 June 2014 (Article 28(2)). Furthermore, the amendments do not concern matters of fundamental relevance to this reference for a preliminary ruling.
(
3
)	This footnote concerns only the Polish version of this Opinion.
(
4
)	Here I am paraphrasing the words of E. Łętowska who stresses that the protection of consumers, as the weaker party to contractual obligations, cannot be limited to legislative activity. Care must also be taken to provide consumers with effective legal remedies because ‘to have a (theoretical) right and not be able to enforce it is a much more severe deprivation (torture of hope arising from impotence) than not having the right at all’. E. Łętowska, Wirtualizacja sądowej ochrony słabszych, in: Ochrona strony słabszej stosunku prawnego. Księga jubileuszowa ofiarowana Profesorowi Adamowi Zielińskiemu, ed. M. Boratyńska, Warsaw, Wolters Kluwer SA 2016, p. 73.
(
5
)	That law entered into force after the Court’s finding in its judgment of 19 February 2004, Commission v Belgium (C‑312/03, EU:C:2004:116), that since Belgium had not implemented Directive 1999/44 by 1 January 2002, it had failed to fulfil its obligations under EU law.
(
6
)	I should note merely in passing that, according to the referring court in the reference for a preliminary ruling, the two-year period of liability did not run until 7 January 2011 when it became possible to register the vehicle. The court also mentions that Mr Ferenschild claimed that this period likewise did not run in the months following that date if the parties intended to conduct negotiations concerning the lack of conformity. The referring court disregarded those facts in drawing up the question and does not seek guidance on the effect of the circumstances described above on the limitation periods. Nor does Directive 1999/44 itself lay down detailed requirements on suspension of limitation periods. Recital 18 of the directive merely states that ‘Member States may provide for suspension or interruption of the period during which any lack of conformity must become apparent and of the limitation period, where applicable and in accordance with their national law, in the event of repair, replacement or negotiations between seller and consumer with a view to an amicable settlement’.
(
7
)	In the context of the implementation of Directive 1999/44, see D. Boden, Le retard pris par la Belgique pour transposer la directive 1999/44/CE ‘sur certains aspects de la vente et des garanties des biens de consommation’, Zeitschrift für Gemeinschaftsprivatrecht, vol. 4, 2003-2004, p. 192; A. Pinna, La transposition en droit français, European Review of Private Law, vol. 9, no 2, 2001, p. 224-231.
(
8
)	Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees (COM/95/0520 final — COD 96/0161, p. 11).
(
9
)	To a certain degree the effects of adopting a uniform concept of ‘lack of conformity of the goods with the contract’ are reduced by Article 2(3) of the directive, under which there is to be deemed not to be a lack of conformity if, at the time the contract was concluded, the consumer was aware, or could not reasonably be unaware, of the lack of conformity. See, S. Pelet, L’impact de la directive 99/44/EC relative à certains aspects de la vente et des garanties des biens de consommation sur le droit français, Revue européenne de droit de la consommation, vol. 1, 2000, p. 49-50.
(
10
)	For example, under Paragraph 435 of the Bürgerliches Gesetzbuch (German civil code), an item is free from legal defects where a third party is unable to exercise against the buyer any rights in relation to that item but may exercise only those rights as are laid down in the contract of sale, in so far as they are laid down therein. Paragraph 923 of the Allgemeines Bürgerliches Gesetzbuch (Austrian civil code) lists among the circumstances which give rise to liability of the seller the sale of an item to another person, and also withholding from the buyer information on the existence of encumbrances on an item and providing false assurances that an item is free from encumbrances. Under the Sale of Goods Act 1979, in force until recently in the United Kingdom, under Section 12, the seller was liable with regard to having the right to dispose of the item (or having that right at the time when ownership was to be transferred to the purchaser), and also with regard to the item being free of any charges or encumbrances at the time of sale and remaining free of such charges and encumbrances until ownership was transferred to the purchaser. Today — at least in relation to contracts concluded with consumers — the issue is governed in a similar manner by Section 17(2) of the Consumer Rights Act 2015. Under Article 5563 of the Kodeks Cywilny (Polish civil code), the seller is liable to the buyer where the item sold is the property of a third party or is encumbered by the right of a third party. Finally, under Article 41 of the United Nations Convention on Contracts for the International Sale of Goods, signed in Vienna on 11 April 1980 — which was the source of inspiration for the European legislature in drafting Directive 1999/44, to which I will refer further below — ‘the seller must deliver goods which are free from any right or claim of a third party’. Those provisions were reflected in the Model Rules of European Private Law (Draft Common Frame of Reference), which were drawn up inter alia using a comparative law approach. Under the first sentence of Article 2:305, in conjunction with Article 2:301(d) in Book IV, Part A, thereof, the burden on an item of a right or well founded claim of a third party is to be regarded as a lack of conformity of goods with a contract (‘The goods must be free from any right or reasonably well founded claim of a third party’). See Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Outline Edition, ed. Ch. Von Bar, E. Clive, H. Schulte-Nölke and Others (ed.), Munich, sellier european law publishers 2009, p. 282.
(
11
)	See Article 2(2)(c) Directive 1999/44.
(
12
)	See judgment of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 38 to 41).
(
13
)	See judgments of 17 July 1997, Giloy (C‑130/95, EU:C:1997:372, paragraph 28), and of 7 January 2003, BIAO (C‑306/99, EU:C:2003:3, paragraphs 18 to 20 and 92 to 94).
(
14
)	See recital 1 of Directive 1999/44, in which a reference is made to Article 153 TEU, replaced by Article 169 of the Treaty on the Functioning of the European Union, the significance of which is now further confirmed by Article 38 of the Charter of Fundamental Rights.
(
15
)	Emphasis added.
(
16
)	Explanatory Memorandum to the Proposal for a European and Council Directive on the sale of consumer goods and associated guarantees, COM/95/0520 final — COD 96/0161, p. 12.
(
17
)	See the Explanatory Memorandum to the Proposal for a European and Council Directive on the sale of consumer goods and associated guarantees, COM/95/0520 final — COD 96/0161, p. 9 and 16.
(
18
)	Explanatory Memorandum to the Proposal for a European and Council Directive on the sale of consumer goods and associated guarantees, COM/95/0520 final — COD 96/0161, p. 13. The source of inspiration for the EU legislature in drafting Directive 1999/44 was also noted in academic legal writings. See also U. Magnus, The CISG’s Impact on European Legislation, in: The 1980 Uniform Sales Law: Old Issues Revisited in the Light of Recent Experiences, ed. F. Ferrari, Milan, sellier european law publishers 2003, p. 135-141; C. Montfort, A la recherche d’une notion de conformité contractuelle. Etude comparée de la Convention de Vienne, de la directive 1999/44 et de certaines transpositions nationales, European Review of Private Law, vol. 4, 2006, p. 499.
(
19
)	The convention does not govern at all the time-barring of actions arising from contracts for the international sale of goods. The omission thereof constitutes an ‘internal gap’, that is to say one for which approaches must be sought in the law designated by the provisions of private international law. U. Magnus, CISG vs. CESL, in: CISG vs. Regional Sales Law Unification: With a Focus on the New Common Sales Law, ed. U. Magnus, Munich 2012, p. 112-113. Ultimately, the time-barring of actions arising from a contract covered by the convention is determined by the provisions of national law. This is not the place to set out the various rules adopted in the individual Member States. However, there is no doubt that different approaches are adopted in that regard. Time-barring also became the subject matter of a separate convention in the form of the Convention on the Limitation Period in the International Sale of Goods, signed in New York on 14 June 1974. I do not wish to go into detail here as to the way in which that convention can operate. In any event, it can apply in place of national law to the assessment of the time-barring of actions arising from a contract covered by the 1980 Convention. In connection with that convention, Article 8 thereof stipulates that a four-year limitation period is to be the norm. This observation is especially pertinent since one of the reasons why the rules of the 1980 convention on limitation periods were departed from was the assumption that in this respect it would be possible to adapt the provisions of the convention on limitation periods so that they were complementary. S.A. Kruisinga, What consumer and commercial sales law have in common? A comparison of the EC Directive on consumer sales law and the UN Convention on contracts for the international sale of goods, European Review of Private Law, vol. 9_No 2, 2001, p. 185.
(
20
)	In the second subparagraph of Article 7(1) of the French-language version of Directive 1999/44 reference is made to Article 5(1) using the term ‘délai’, which was used in the second sentence of that provision in the expression ‘délai de prescription’. Similarly, in the English-language version, Article 7(1) of the directive refers to the ‘period’ set down in Article 5(1), where the term ‘limitation period’ appears in relation to limitation periods in the second sentence thereof. Nor is the Polish translation of the directive, which in the second subparagraph of Article 7(1) refers to the ‘okresy’ set down in Article 5(1), free of such ambiguity. In the latter provision the term ‘okres’ appears only when defining the rules on ‘okresy przedawnienia’. In the second subparagraph of Article 7(1) of the Spanish version of the directive, reference is made to Article 5(1) using the term ‘plazo de responsabilidad por parte del vendedor menor que el establecido en el apartado 1 del artículo 5’, although the same term ‘plazo’ appears in Article 5(1) to denote limitation periods (‘plazo de prescripción’). Doubts may be raised by the Italian-language version of the directive. In the second subparagraph of Article 7(1) thereof reference is made to Article 5(1) using the expression ‘periodo di tempo’. However, that term does not appear in Article 5(1) which refers to the seller’s liability for the lack of conformity which becomes apparent within two years as from delivery (first sentence of Article 5(1): ‘il difetto di conformità si manifesta entro il termine di due anni’) and the onset of the effects of limitation (second sentence of Article 5(1): ‘... prescrizione, questa non può intervenire …’). I should note that in some language versions the reference to Article 7(1) of Directive 1999/44 does not give rise to such difficulties of interpretation. For example, the second subparagraph of Article 7(1) of the Lithuanian version of the directive refers to the period of liability set down in Article 5(1) thereof (‘trumpesnis pardavėjo atsakomybės laikotarpis nei tas, kuris nurodytas 5 straipsnio 1 dalyje’), whilst the second sentence of Article 5(1) of the Lithuanian version refers to limitation periods using the expression ‘senaties terminas’.
(
21
)	In the case of the German version of the directive, additional guidance may come from the wording of the second sentence of the second subparagraph of Article 7(1) of Directive 1999/44. Although the first sentence of the second subparagraph of Article 7(1) points to the possibility of limiting the periods set down in Article 5(1) of the directive which are binding on the seller (‘der Verkäufer weniger lange haftet als in Artikel 5 Absatz 1 vorgesehen’), the second sentence of the second subparagraph of Article 7(1) further clarifies that the reference is to the periods of liability (‘Haftungsdauer’) which may not be less than one year.
(
22
)	See judgment of 2 September 2015, Surmačs (C‑127/14, EU:C:2015:522, paragraph 28).
(
23
)	Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees, COM/95/0520 final — COD 96/0161, p. 17 et seq.
(
24
)	Opinion of the Economic and Social Committee on the ‘Proposal for a European Parliament and Council Directive on the sale of consumer goods and guarantees’, OJ 1997 C 66, p. 8 and 10.
(
25
)	See Common Position No 51/98 of 24 September 1998 adopted by the Council with a view to adopting a directive on certain aspects of the sale of consumer goods and associated guarantees, OJ 1998 C 333, p. 50 and 54.
(
26
)	See judgment of 1 March 2012, González Alonso (C‑166/11, EU:C:2012:119, paragraph 26 and the case-law cited).
(
27
)	Judgments of 17 April 2008, Quelle (C‑404/06, EU:C:2008:231, paragraph 42), and of 16 June 2011, Gebr. Weber and Putz (C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 58). See also the Opinions of Advocate General Trstenjak in Quelle (C‑404/06, EU:C:2007:682, point 48 and the comments in footnote 32), and of Advocate General Mazák in Gebr. Weber (C‑65/09, EU:C:2010:274, points 30, 85 and 86).
(
28
)	Judgment of 17 April 2008, Quelle (C‑404/06, EU:C:2008:231, paragraph 42).
(
29
)	Judgment of 16 June 2011, Gebr. Weber and Putz (C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 58).
(
30
)	However, it should be noted that departing from the presumption laid down in that provision may concern the type of non-conformity which arises from use of the item, but not — in my view — any non-conformity per se. D. Staudenmayer, The Directive on the Sale of Consumer Goods and Associated Guarantees — A Milestone in the European Consumer and Private Law, European Review of Private Law, vol. 4, 2000, p. 561.
(
31
)	In the main proceedings in connection with which the national court made the reference for a preliminary ruling, the applicant brought the action on 12 March 2012, the vehicle was received on 21 September 2010, and the defect was detected on 22 September 2010.
(
32
)	See point 91 of this Opinion.