COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 19.01.1999 
COM(l 999)16 final 
96/0161 (COD) 
OPINION OF THE COMMISSION 
pursuant to Article 189 b (2) (d) of the EC Treaty, 
on the European Parliament's amendment 
to the Council's common position regarding the 
proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 
on the sale of consumer goods and associated guarantees, 
AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 189 a (2) of the EC Treaty 
EXPLANATORY MEMORANDUM 
I - Overview of the procedure 
On 18 June 1996 the Commission adopted the proposal for a Directive on the sale of 
consumer goods and associated guarantees. 
The Economic and Social Committee delivered its opinion at its 340th plenary session 
on 27 and 28 November 1996. 
On 10 March 1998 the European Parliament adopted a legislative resolution 
embodying the opinion of the European Parliament, acting on a proposal from its 
rapporteur, Mrs Kuhn. The Commission presented an amended proposal on 31 March 
1998. 
For its part, the Council reached a political agreement on 24 April 1998, on the basis 
of which the common position was formally adopted on 24 September 1998. 
On 25 September 1998 the Commission presented its Communication on the 
Council's common position to the European Parliament. 
On 17 December 1998, acting on a proposal from its rapporteur, Mrs Kuhn, the 
European Parliament adopted the recommendation for the second reading on the 
common position. 
Pursuant to Article 189b(2)(d) of the Treaty, the Commission must deliver an opinion 
for the attention of the Council on the amendments adopted by Parliament. In this 
particular case this opinion amends the Commission's proposal pursuant to Article 
189a(2). 
II - Comments on the amendments 
The, European Parliament's amendments may be grouped into several categories. They 
concern the Directive's legal basis, its scope, the principle of conformity of the goods 
with the contract, the procedures for invoking the consumer's rights, the possibility of 
excluding the seller's liability, the producer's obligations, and the final provisions. 
X 
1. The legal basis 
Amendment 1 is designed to supplement the Directive's legal basis with Article 129a 
of the Treaty, in particular paragraph 1(a) thereof. Although the Commission has not 
included this amendment in its amended proposal, it proposes including - by way of 
compromise in the context of the legislative procedure - a new recital acknowledging 
that the Community contributes to the protection of consumers' economic interests by 
the measures it adopts in the context of the internal market, in order to promote 
consumers' interests and to guarantee a high level of consumer protection. This recital 
corresponds to the text of the new Article 153 in the version of the Amsterdam Treaty. 
2. Scope 
Amendment 11, designed to widen the scope of the Directive, has not been accepted 
because the wording of the article in the common position matches the corresponding 
provision in the 1980 Vienna Convention on contracts for the international sale of 
goods. Since many provisions in the proposal for a Directive correspond to the 
pertinent provisions of the Vienna Convention, it is desirable wherever possible to 
maintain this parallelism. At any rate Member States may waive this provision by 
applying the minimum clause when transposing the Directive into their national law. 
3. The principle of conformity of the goods with the contract 
Amendments 3, 12 and 15 contain certain modifications as regards the principle of 
conformity of the good with the contract and its implementation. . 
The first of these amendments has not been accepted because the European Parliament 
does not propose amending the wording of the corresponding provision in the text 
itself, and because the current version of the recital better matches the current wording 
of this article. 
Nor has the Commission accepted Amendment 12. Since the wording of the article to 
be modified is similar to that of the 1980 Vienna Convention concerning an 
equivalent provision, it is preferable not to accept the modification and to maintain the 
parallelism. At any rate Member States may waive this provision by applying the 
minimum clause when transposing the text. 
However, Amendment 15, which corresponds to a practical need, will be included in 
the amended proposal, albeit in a somewhat modified form. The idea here is to resolve 
the problems raised by the Council at first reading, which had led it to reject this 
amendment. 
4. The procedures for invoking the consumer's rights 
The Commission rejects Amendment 33 on grounds of legislative technique. The 
recitals of a Directive are explanations of the wording designed to facilitate 
interpretation of its articles. The purpose of recital 14 is to explain that - because of 
3 
the specific nature of second-hand goods - it is impossible to replace them. The 
explanation in the recital is sufficient-and so there is no need to include a reference to 
this recital in Article 3. 
Neither does the Commission accept Amendment 18. The Commission had in effect 
approved the common position in which the Council maintained its ranking scheme. 
This amendment is not necessary in that Article 3(2) of the common position already 
provides for bringing the good into conformity free of charge. 
Besides, the Commission in its amended proposal has clarified a potential ambiguity 
in certain language versions (relating to Article 3 (4)), mentioned in the explanatory 
memorandum of the Council's common position and also raised in the context of the 
Parliament's second reading. The correction is in line with the explanation of the 
content of this provision provided by the Council in its explanatory memorandum. 
5. The possibility of waiving the seller's liability 
Amendment 34 provides that, in the case of contracts for the sale of works of art, 
collectors' items or antiques, Member States may provide that the parties may 
contractually waive all liability on the seller's part. The Commission has not accepted 
this amendment because it considers that in practice this provision would allow 
professional sellers to exclude liability on a systematic basis in their general terms and 
conditions. 
6. The producer's obligations 
The Commission rejects Amendment 5 because it does not correspond to a provision 
of the Directive. 
The Commission accepts Amendment 19. This amendment usefully simplifies the text 
because it is clear that the final seller, as a professional, may waive his right to seek 
remedies against the party responsible. 
7. Final provisions 
Amendments 25, 26, 27 and 28 concern the Directive's final provisions. 
Firstly, the Commission accepts Amendment 25. Notably, the Directive's objectives 
are to guarantee the existence of a common minimal standard in all Member States 
and to ensure that consumers can make the most of the internal market. In order to 
safeguard these objectives it is essential that consumers be informed of these new 
rights and that they be able to rely on a common corpus of rights in all Member 
States. 
Amendment 26 has also been accepted, though the wording has been modified in 
order to ensure better legislative drafting. In effect this amendment is justified, after 
the entry into effect of Directive 98/27 on injunctions. 
However, Amendments 27 and 28 have not been accepted. Amendment 27 on 
complaint procedures and remedies is considered to be an overly complex problem 
and addresses too many questions that lie outside the scope of the Directive. These 
questions cannot be satisfactorily settled in this context. As regards Amendment 28, 
the Commission had already approved the Council's common position. 
Ill - Amended proposal 
In view of the foregoing, and in accordance with Article 189(a)(2), the Commission's 
amended proposal incorporates amendments 15, 19, 25 and 26. 
6 
Amended proposal for a European Parliament and Council 
Directive on the sale of consumer goods and associated 
guarantees 
COMMON POSITION AMENDED PROPOSAL 
Whereas, in order to promote the interests 
of consumers and to ensure a high level 
of consumer protection, the Community 
contributes to the protection of 
consumers' economic interests through 
the measures it adopts in the context of 
the internal market. 
Article 2(5) 
5. Any lack of conformity resulting from 
incorrect installation of the goods shall be 
considered to be equivalent to lack of 
conformity of the goods with the 
contract, if the goods were installed by 
the seller or under his responsibility. 5. Any lack of conformity resulting from 
incorrect installation of the goods shall be 
considered to be equivalent to lack of 
conformity of the goods with the contract, 
if the goods were installed by the seller or 
under his responsibility. This shall apply 
equally if the product, intended to be 
installed by the consumer, is installed by 
him and the incorrect installation is due to 
a lack of conformity in the written 
installation instructions. 
Article 3(4) 
4. If the consumer is entitled to require 
neither repair nor replacement, or if the 
seller has not completed the remedy 
within a reasonable time and without any 
significant inconvenience to the 
consumer, the consumer may require an 
appropriate reduction of the price or have 
the contract rescinded. 4. If the consumer is entitled to require 
neither repair nor replacement, or if the 
seller has not completed the remedy 
within a reasonable time or without any 
significant inconvenience to the 
consumer, the consumer may require an 
appropriate reduction of the price or have 
the contract rescinded. 
Article 4 
Right of redress 
Where the final seller is liable to the 
consumer because of a lack of conformity 
resulting from an act or omission by the 
producer, a previous seller in the same 
chain of contracts or any other 
intermediary, the final seller shall be 
entitled to pursue remedies against the 
person or persons liable in the contractual 
chain unless he has renounced that Where the final seller is liable to the 
consumer because of a lack of conformity 
resulting from an act or omission by the 
producer, a previous seller in the same 
chain of contracts or any other 
intermediary, the final seller shall be 
entitled to pursue remedies against the 
person or persons liable in the contractual 
chain. The person or persons liable 
(p 
entitlement. The person or persons liable 
against whom the final seller may pursue 
remedies, together with the relevant 
actions and conditions of exercise, shall 
be determined by national law. against whom the final seller may pursue 
remedies, together with the relevant 
actions and conditions of exercise, shall 
be determined by national law. 
Article 9 
Consumer information 
Member States shall provide for measures 
to inform consumers of the national law 
adopted to transpose this Directive and 
shall where appropriate invite 
professional organizations to inform 
consumers of their rights. 
Article 10 
Legislation 
The Annex to Directive 98/27/EC(1) of the 
European Parliament and the Council on 
injunctions for the protection of 
consumers' interests shall be 
supplemented as follows: 
"10. Directive 99/.../EC of the European 
Parliament and Council of ... on certain 
aspects of the sale of consumer goods and 
associated guarantees (OJ No L ... of ... 
1999, p....)". 
WQJL 166 of 11.6.1998, p.51. 
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ISSN 0254-1475 
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