A4-0029/98

Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees (COM(95)0520 - C4-0455/96 - 96/0161(COD))

The proposal was approved with the following amendments:

(Amendment 1)

Citation 1

>Original text>

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

>Text following EP vote>

Having regard to the Treaty establishing the European Community, and in particular

Articles 100a and 129a thereof,

(Amendment 2)

Recital 3a (new)

>Original text>

>Text following EP vote>

Whereas the sale of consumer goods should cover all types of contract whereby goods are supplied by the seller to the consumer, including contracts where goods are supplied in exchange for another asset in place of the purchase price, contracts of hire and contracts where payments are made by instalments and ownership of the goods is not transferred to the consumer until all instalments due have been paid;

(Amendment 3)

Recital 6

>Original text>

Whereas the goods must, above all, conform with the contractual specifications; whereas the notion of conformity with the contract may be considered as common to the different national legal traditions; whereas the seller should be directly liable to the consumer for the conformity of the goods with the contract; whereas, nevertheless, the seller should be free to pursue remedies against his own seller or the producer when the non-conformity is the result of an act of commission or omission on their part;

>Text following EP vote>

Whereas the goods must, above all, conform with the contractual specifications; whereas the notion of conformity with the contract may be considered as common to the different national legal traditions; whereas the seller

is normally directly liable to the consumer for the conformity of the goods with the contract; whereas, nevertheless, the seller should be free to pursue remedies against his own seller or the producer when the non-conformity is the result of an act of commission or omission on their part;

(Amendment 4)

Recital 6a (new)

>Original text>

>Text following EP vote>

Whereas as a result of the internal market more and more consumers are purchasing goods abroad; whereas this trend should be encouraged; whereas, with a view to efficient operation of the internal market, the consumer must have a simple means of exercising his rights in respect of goods purchased in another Member State; whereas in certain cases it can be difficult or even impossible for the consumer to exercise his rights against the seller of the goods; whereas in such cases it is desirable that the consumer, in the event of non-conformity with the sales contract, should be able to take action directly against the producer or, if possible, the producer's representative in the consumer's Member State;

(Amendment 5)

Recital 7

>Original text>

Whereas, in the case of non-conformity of the product with the contract, consumers should be entitled to request that the product be repaired or replaced, or to a reduction in the price paid by way of damages or cancellation of the contract of sale; whereas, however, exercise of these rights should be limited in time and time-limits laid down during which these rights may be invoked against the seller;

>Text following EP vote>

Whereas, in the case of non-conformity of the product with the contract,

the seller or, where appropriate, the producer must bring it into conformity therewith within a reasonable period; whereas, depending on the type of product and the defect, he shall determine how this can be done most quickly and most effectively; whereas the consumer may demand an appropriate price reduction or rescission of the contract of sale if the product cannot be repaired free of charge without loss of value or replaced within a reasonable period or if the product after initially being repaired or replaced is still defective;

(Amendment 6)

Recital 7a (new)

>Original text>

>Text following EP vote>

Whereas consumers using the single market and purchasing moveable goods in another Member State need to be better protected, and the manufacturer must therefore enclose with consumer goods that are sold in several Member States a list with at least one claims office in each Member State in which the product is marketed; whereas consumers must be able to notify that office of cases of contractual non-conformity;

(Amendment 7)

Recital 8

>Original text>

Whereas, in the interest of a stable business environment and good faith in the relations between the Contracting Parties, it should be incumbent on the consumer to notify the seller of any non-conformity he detects within a short period; whereas in order to allow the parties to reach amicable settlements without immediately having to institute legal proceedings to safeguard their rights the limitation period should be interrupted once the consumer draws attention to the lack of conformity of the goods;

>Text following EP vote>

Deleted

(Amendment 8)

Recital 9

>Original text>

Whereas it is current practice, for certain categories of goods, for sellers and producers to offer guarantees on their products designed to insure consumers against any defect which becomes manifest within a certain period; whereas this practice can stimulate competition; whereas, however, these guarantees may be a simple publicity ploy and deceive the consumer; whereas to ensure market transparency certain common principles applicable to the guarantees offered by the economic operators should be laid down;

>Text following EP vote>

Whereas it is current practice, for certain categories of goods, for sellers and producers to offer

commercial guarantees on their products designed to insure consumers against any defect which becomes manifest within a certain period; whereas this practice can stimulate competition; whereas, however, these guarantees may be a simple publicity ploy and deceive the consumer; whereas to ensure market transparency common principles applicable to the guarantees offered by the economic operators should be laid down;

(Amendment 9)

Recital 10a (new)

>Original text>

>Text following EP vote>

Whereas consumers are entitled to reliable information on the availability of an appropriate after-sales service;

(Amendment 10)

Recital 11

>Original text>

Whereas legislation and case-law in this area in the various Member States show that there is growing concern to ensure a high level of consumer protection; whereas in the light of these trends and the experience acquired in implementing this Directive it may be necessary to envisage more far-reaching harmonization, notably by stipulating the producer's direct liability for defects for which he is responsible;

>Text following EP vote>

Whereas legislation and case-law in this area in the various Member States show that there is growing concern to ensure a high level of consumer protection; whereas in the light of these trends and the experience acquired in implementing this Directive it

will be necessary to envisage more far-reaching harmonization, notably by stipulating the producer's direct liability for defects for which he is responsible;

(Amendment 11)

Article 1(2)(a)

>Original text>

(a) Consumer means any natural person who, in the contracts covered by this Directive, is acting for purposes which are not directly related to his trade, business or profession;

>Text following EP vote>

(a) Consumer means any natural person who, in the contracts covered by this Directive, is acting for purposes which are not related to his trade, business or profession;

(Amendment 12)

Article 1(2)(b)

>Original text>

(b) Consumer goods means any goods, excluding buildings, normally intended for final use or consumption;

>Text following EP vote>

(b) Consumer goods means any moveable goods, excluding buildings, that are supplied by sellers to consumers;

(Amendment 13)

Article 1(2)(c)

>Original text>

(c) Seller means any natural or legal person who sells consumer goods in the course of his trade, business or profession;

>Text following EP vote>

(c) Seller means any natural or legal person who sells consumer goods in the course of his trade, business, profession or statutory activity or supplies them in exchange for another asset in place of the purchase price;

(Amendment 14)

Article 1(2)(d)

>Original text>

(d) Guarantee means any additional undertaking given by a seller or producer, over and above the legal rules governing the sale of consumer goods, to reimburse the price paid, to exchange, repair or handle a product in any way, in the case of non-conformity of the product with the contract.

>Text following EP vote>

(d) Commercial guarantee means any special undertaking given by a seller or producer to put things right if the goods do not match the characteristics described in the guarantee statement or the relevant advertising.

(Amendment 15)

Article 1(2)(da) (new)

>Original text>

>Text following EP vote>

(da) Producer means the manufacturer of the goods, the person importing the goods into Community territory, or any person purporting to be the producer by putting his/her name, trade mark or other distinguishing mark on the goods.

(Amendment 16)

Article 1(2)(db)(new)

>Original text>

>Text following EP vote>

(db) Producer's representative means the natural or legal person who acts as the official distributor and/or official service provider of the producer, with the exception of independent sellers who operate exclusively as retailers;

(Amendment 17)

Article 1(2a) (new)

>Original text>

>Text following EP vote>

2a. Contracts for the delivery of goods to be manufactured or produced shall be equated with purchase contracts.

(Amendment 18)

Article 2(2)(a)

>Original text>

(a) they comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model;

>Text following EP vote>

(a)

they comply with the description given by the seller or producer and possess the qualities of the goods which the seller or producer has held out to the consumer as a sample or model;

(Amendment 19)

Article 2(2)(c)

>Original text>

(c) they are fit for any particular purpose for which the consumer requires them and which he had made known to the seller at the time of conclusion of the contract, except where the circumstances show that the buyer did not rely on the seller¨s explanations;

>Text following EP vote>

(c)

they are fit for any particular purpose for which the consumer requires them and which he had made known to the seller at the time of conclusion of the contract;

(Amendment 20)

Article 2(2)(d)

>Original text>

(d) their quality and performance are satisfactory given the nature of the goods and the price paid and taking into account the public statements made about them by the seller, the producer or his representative.

>Text following EP vote>

(d)

their quality and performance are such as consumers were entitled to expect, partly on the grounds of the public statements made about the product in advertising or labelling by the seller, the producer or his representative.

(Amendment 21)

Article 2(2a) (new)

>Original text>

>Text following EP vote>

2a. Goods shall be deemed to be in conformity with the contract as defined in this Article if at the time of purchase the consumer agreed to conclude the contract although aware of the lack of conformity.

(Amendment 22)

Article 2(2b) (new)

>Original text>

>Text following EP vote>

2b. For the purposes of paragraph 2(b), fitness for purpose shall include consideration inter alia of the following aspects of the quality of the goods: appearance and finish, freedom from minor defects, safety and durability.

(Amendment 23)

Article 2(3)

>Original text>

3. 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.

>Text following EP vote>

3.

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 is installed by the consumer and the incorrect installation is due to a lack of conformity in the written installation instructions.

(Amendment 24)

Article 3(1)

>Original text>

1. The seller shall be liable to the consumer for any lack of conformity which exists when the goods are delivered to the consumer and which becomes manifest within a period of two years unless, at the moment of conclusion of the contract of sale, the consumer knew or could not be unaware of the lack of conformity.

>Text following EP vote>

1.

The seller shall be liable to the consumer for any lack of conformity which exists when the goods are actually delivered to the consumer and which becomes manifest within a period of two years.

(Amendment 25)

Article 3(1a) (new)

>Original text>

>Text following EP vote>

1a. By derogation from paragraph 1, the consumer may apply directly to the producer or, where applicable, to his representative in the consumer's Member State, if:

>Original text>

>Text following EP vote>

- the seller of the goods is established in another Member State,

>Original text>

>Text following EP vote>

- the seller has ceased trading or has established himself elsewhere without giving notice of this fact,

>Original text>

>Text following EP vote>

- the seller cannot be informed in good time of the lack of conformity.

(Amendment 26)

Article 3(2)

>Original text>

2. When the goods are not in conformity with the public statements made by the producer or his representative, the seller shall not be liable if:

>Text following EP vote>

2.

When the goods are not in conformity with the public statements made by the producer or his representative, the seller shall not be liable if the seller shows that he did not know and could not know the statement in question.

>Original text>

- the seller shows that he did not know and could not reasonably know the statement in question,

>Text following EP vote>

>Original text>

- the seller shows that at the time of sale he corrected the statement, or

>Text following EP vote>

>Original text>

- the seller shows that the decision to buy the goods could not have been influenced by the statement.

>Text following EP vote>

(Amendment 27)

Article 3(3)

>Original text>

3. Until proof of the contrary any lack of conformity which becomes manifest within six months of delivery shall be presumed to have existed at the time of delivery, unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity.

>Text following EP vote>

3.

Until proof of the contrary any lack of conformity which becomes manifest within six months of actual delivery shall be presumed to have existed at the time of delivery, unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity.

(Amendment 45)

Article 3(4)

>Original text>

4. When a lack of conformity is notified to the seller, pursuant to Article 4, the consumer shall be entitled to ask the seller either to repair the goods free of charge within a reasonable period, or to replace the goods, when this is possible, or to demand an appropriate price reduction or rescission of the contract. Exercise of the right of rescission or replacement of the good is limited to one year

>Text following EP vote>

4.

When a lack of conformity is notified to the seller, the latter must without unreasonable delay offer to repair the goods free of charge or to replace the goods. The consumer shall have the right to choose either of these options unless, in view of the particular nature of the case, only one specific option appears economically appropriate having regard to the seller¨s interests, and reasonable to the consumer. The consumer need not accept an offer to repair the goods where this would result in a reduction in their value; in such an event he may demand a replacement.

>Original text>

Member States may provide that the scope of the rights referred to in the first subparagraph be limited in the case of a minor lack of conformity.

>Text following EP vote>

>Original text>

>Text following EP vote>

If neither of these is possible, or if the lack of conformity is not made good after the attempted repair, the consumer shall have the right to demand an appropriate price reduction or rescission of the contract.

(Amendment 29)

Article 3(4), subparagraphs 2a and 2b (new)

>Original text>

>Text following EP vote>

The same provisions shall apply to goods supplied by way of replacement as to newly purchased goods.

>Original text>

>Text following EP vote>

Where the goods are replaced, the guarantee period pursuant to paragraph 1 shall recommence. Where a defect is remedied, this guarantee period shall recommence in respect of the remedied defect.

(Amendment 30)

Article 3(4), subparagraph 2c (new)

>Original text>

>Text following EP vote>

The seller shall bear any costs incurred, such as for transport, travelling, labour or materials.

(Amendment 31)

Article 3(5)

>Original text>

5. When the final seller is liable to the consumer because of a lack of conformity resulting from an act of commission 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 responsibleperson, under the conditions laid down by national law.

>Text following EP vote>

5.

When the final seller is liable to the consumer because of a lack of conformity resulting from an act of commission 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 persons liable. The right to pursue remedies shall be exercised under the conditions laid down by national law; however, the persons designated as liable shall not be entitled to invoke contractual safeguard clauses whereby the final seller may not lawfully decline liability vis-à-vis the buyer.

(Amendment 32)

Article 3a (new)

>Original text>

>Text following EP vote>

Article 3a

Payment by instalments

>Original text>

>Text following EP vote>

If the seller and consumer agree to payment by instalments, such payments may be suspended until a lack of contractual conformity is put right.

(Amendment 33)

Article 3b (new)

>Original text>

>Text following EP vote>

Article 3b

>Original text>

>Text following EP vote>

Suspension of periods of liability

>Original text>

>Text following EP vote>

Where the consumer notifies the seller or the address mentioned in Article 3c of a lack of conformity, the period under Article 3(1) shall be suspended until the seller¨s obligations are fulfilled. If the consumer has recourse to an existing extrajudicial complaints system in the Member States or takes legal action, the period under Article 3(1) shall likewise be suspended until a decision is taken under the extrajudicial complaints system or a judicial decision is made.

(Amendment 48)

Article 3c (new)

>Original text>

>Text following EP vote>

Article 3c

Information

In the case of goods sold in several Member States the producer shall provide a contact address in each Member State that can provide consumers with relevant information for asserting their claims when notified about a lack of conformity.

(Amendment 36)

Article 5

>Original text>

Guarantees

>Text following EP vote>

Commercial guarantees

>Original text>

1. Any guarantee offered by a seller or producer shall legally bind the offerer under the conditions laid down in the guarantee document and the associated advertising and must place the beneficiary in a more advantageous position than that resulting from the rules governing the sale of consumer goods set out in the national provisions applicable.

>Text following EP vote>

1.

Any guarantee offered shall legally bind the offerer under the conditions laid down in the guarantee document and the associated advertising and must place the beneficiary in a more advantageous position than that resulting from the rules governing the sale of consumer goods set out in the national provisions applicable.

>Original text>

2. The guarantee must feature in a written document which must be freely available for consultation before purchase and must clearly set out the essential particulars necessary for making claims under the guarantee, notably the duration and territorial scope of the guarantee, as well as the name and address of the guarantor.

>Text following EP vote>

2.

The guarantee must feature in a written document which must be freely available for consultation before purchase and must clearly set out the essential particulars necessary for making claims under the guarantee, notably the duration and territorial scope of the guarantee, the name and address of the person to be contacted, the procedure to be followed in order to make a claim under the guarantee, as well as the name and address of the guarantor. It must also advise consumers that they have legal rights and that the guarantee does not affect those rights in any way. A guarantee only on specific parts of the product must clearly indicate this limitation, otherwise the limitation shall be invalid.

(Amendment 38)

Article 5a (new)

>Original text>

>Text following EP vote>

Article 5a

>Original text>

>Text following EP vote>

Consumer information

>Original text>

>Text following EP vote>

Member States shall provide for measures to inform consumers of the national law adopted to transpose this Directive and shall where appropriate ask professional organizations to inform consumers of their rights.

(Amendment 39)

Article 5b (new)

>Original text>

>Text following EP vote>

Article 5b

>Original text>

>Text following EP vote>

Implementation

>Original text>

>Text following EP vote>

Two years after the deadline for transposition has expired the Commission shall submit a report on the implementation of this Directive to the European Parliament and the Council.

(Amendment 40)

Article 5c (new)

>Original text>

>Text following EP vote>

Article 5c

Legislation

After expiry of the period provided for in Article 8(1), the following point shall be added to the annex to Directive 98/.../EC on actions for restraint to protect the interests of consumers:

"9a. Directive 98/.../EC on the sale of consumer goods and associated guarantees (OJ L ......)".

(Amendment 42)

Article 6(2)

>Original text>

2. Member States shall take the necessary measures to ensure that, irrespective of the law applicable to the contract, and when the contract has a close connection with the territory of the Member States, consumers are not deprived of the protection afforded by this Directive.

>Text following EP vote>

2.

Member States shall take the necessary measures to ensure that consumers are not deprived of the protection afforded by this Directive if the law of a third country has been chosen as the law to be applied to the contract and the contract has a close connection with the territory of the Member States.

(Amendment 43)

Article 7a (new)

>Original text>

>Text following EP vote>

Article 7a

Legal remedies and complaints

1. The Member States shall, in cooperation with consumer associations and industrial and professional organizations, devise complaints systems which guarantee the independent, impartial and effective processing of complaints.

>Original text>

>Text following EP vote>

2. In the case of cross-border contracts within the European Union, the Member States shall ensure that appropriate and effective complaints procedures and remedies are in place to settle any disputes between consumers and sellers. In the case of defective goods consumers shall be entitled to use the complaints agency as mediator or to refer their claims arising from the contract of sale to the complaints agency.

Legislative resolution embodying Parliament¨s opinion on the proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees (COM(95)0520 - C4-0455/96 - 96/0161(COD))(Codecision procedure: first reading)

The European Parliament,

- having regard to the Commission proposal to Parliament and the Council, COM(95)0520 - 96/0161(COD) ((OJ C 307, 16.10.1996, p. 8.)),

- having regard to Articles 189b(2) and 100a of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C4-0455/96),

- whereas the proposed legal basis is inappropriate; whereas reference should also be made to Article 129a of the EC Treaty,

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on the Environment, Public Health and Consumer Protection and the opinions of the Committee on Economic and Monetary Affairs and Industrial Policy and the Committee on Legal Affairs and Citizens¨ Rights (A4-0029/98),

1. Approves the Commission proposal, subject to Parliament¨s amendments;

2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC Treaty;

3. Calls on the Council to incorporate Parliament¨s amendments in the common position that it adopts in accordance with Article 189b(2) of the EC Treaty;

4. Should the Council intend to depart from the text approved by Parliament, calls on the Council to notify Parliament and requests that the conciliation procedure be initiated;

5. Points out that the Commission is required to submit to Parliament any modification it may intend to make to its proposal as amended by Parliament;

6. Instructs its President to forward this opinion to the Council and Commission.