Amended proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees
Date: 1998-03-31
Institutions: European Commission
Subjects: after-sales service, approximation of laws, consumer goods, consumer protection, single market

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 31.03.1998 
COM(1998) 217 final 

96/0161 (COD) 

Amended proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

on the sale of consumer goods and 

associated guarantees 

(presented by 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 of the European Communities adopted the proposal for 
a  Directive  on  the  sale  of  consumer  goods  and  associated  guarantees,  which  was 
transmitted to the European Parliament and Council on 23 August 1996. 

It was presented to the Consumer Affairs  Council of 25 November 1996. 

The Economic and Social Committee delivered its opinion at its 340th plenary session on 
27  and  28 November  1996,  acting  on  a  proposal  from  its  rapporteur  MrEttl  and  co-
rapporteur Mr Folias. 

The  proposal  for  a  Directive  was  discussed  at  the  Consumer  Affairs  Council  of 
3 November  1997. 

On  10 March  1998 the  European  Parliament  adopted  a legislative  resolution  embodying 
Parliament's  opinion,  acting  on  a  proposal  from  its  rapporteur,  Mrs Kuhn.  In  this 
resolution  the Parliament  invited  the Commission  to modify  its proposal  on the basis of 
the proposed amendments. 

II.  COMMENTS ON THE AMENDMENTS 

The European  Parliament's  amendments can be grouped  into several  categories. Notably 
they concern  the proposal's  scope, the notion  of conformity,  the consumer's  rights, how 
these  rights  are exercised  in practice, the producer's  obligations, commercial  guarantees 
and the final provisions. 

1. Scope 

Amendments  2,  11,  12,  13,  14,  15,  16 and  17 concern  the  scope  of  the  proposal  for  a 
Directive. The Commission has fully  integrated  amendments  11,  14, 15 and 17. 

Amendments  12 and  16 were  integrated  with  a drafting  modification.  In amendment  12 
the words "excluding  buildings" were deleted, because this exclusion  is already  covered 
by  the  expression  "moveable  goods".  In  the  case  of  amendment  16  the  expression 

£ 

"and/or" is to be avoided. In this definition  is enough to write "or", because this is not an 
alternative "or", but a cumulative one. 

Amendments  2  and  13  were  partly  integrated.  As  regards  amendment  2,  the  term 
"contracts  of  hire"  was  deleted,  because  to  include  them  would  alter  the  scope  of  the 
Directive, something which cannot be done within a recital. The term "statutory  activity" 
was  rejected.  Article  1(2)  (c)  of  the  initial  proposal  corresponds  to  the  traditional 
definitions  of the existing directives. Hence changes  should  be  restricted  to a minimum. 
The part of the amendment which aims to include contracts for the exchange of assets in 
the scope meets a practical need. On the contrary, it is not necessary to include statutory 
activity, given the minor importance of such a modification  in practice. 

Finally,  the  Commission  rejected  amendment  1. However,  the  Directive's  reasoning  is 
based  on  two  strands, the  internal  market  but  also the consumer  protection.  Taking  into 
account Parliament's intention to strengthen the consumer policy strand, the Commission 
has  integrated  a  new  recital  into  the  amended  proposal  incorporating  the  wording  of 
Article  129a. 

2. Notion of conformity 

Amendments  18,  19,  20,  21,  22  and  23  concern  the  notion  of  conformity.  The 
Commission has integrated amendments  19, 20, 21 and 23. 

Amendments  18  and  22  were  rejected  because  they  are  foreign  to  this  notion  of 
conformity  as set out  in Article 2. The intention  of amendment  18 is already covered by 
Article 2(2)(d). Moreover,  it is unusual  in commercial  practice  for  a producer to present 
the  consumer  with  a  sample  or  model.  The  elements  mentioned  in  amendment  22  are 
covered  by  Article  2(2)(d),  which  concerns  the  quality  aspects,  while  Article  2(2)(b) 
concerns normal use of the good. 

3. The consumer's rights 

Amendments  24,  26,  29  and  45  concern  the  consumer's  rights.  The  Commission  has 
accepted amendments 29 and 45. 

Amendments  24 and  26 could  only be partly  integrated.  As regards  amendment  24, it is 
preferable  not  to  refer  to  "actual"  delivery.  The  term  delivery  on  its  own  gives  the 
Member  States  an  adequate  margin  for  transposition,  without  broaching  the  general 
problem  of  the  transfer  of  risks,  one  which  is  regulated  in  very  different  ways  and  in 
copious detail in domestic  legislation. The part of amendment 26 deleting the second and 
third  indents  has not  been  integrated.  These restrictions  limit the  general  liability  of the 
seller  for  public  statements  made  by  the  producer  or  his  representative  and  are  special 
expressions of the general principle of good  faith. 

4. Exercising rights in practice 

Amendments  7,  27,  29,  30,  32  and  33  concern  the  way  the  consumer's  rights  are 
exercised in practice. The Commission has integrated amendments 7, 29, 30, 32 and 33. 

3 

Amendment  27  has  not  been  integrated  for  the  same  reason  linked  to  the  principle  of 
subsidiarity  already  mentioned  in connection  with  amendment  24. The term  delivery  on 
its own gives the Member States an adequate margin for transposition, without broaching 
the general problem of the transfer  of risks, one which is regulated in very different  ways 
and in copious detail in domestic legislation. 

Article 4 of the original proposal has been deleted. This proposal was designed to balance 
consumers'  freedom  to choose between their  four  rights. Since this free  choice  has been 
restricted by the introduction of a hierarchy of consumer rights, together with criteria also 
restricting the consumer's  choice in regard to his first  two rights, the provision of Article 
4(1) is no  longer justified.  Article 4(2)  is in contradiction  with  amendment  33, which  is 
now the new Article 5, and should therefore be deleted. 

5. The producer's  obligations 

Amendments  3,  4,  5,  10  and  25  concern  the  producer's  liability.  The  Commission 
considers  that  it  is  preferable  to  leave  this  to  the  Member  States.  As  mentioned  in  the 
penultimate  recital,  an amendment  might  be envisaged  in the light  of experience  gained 
in implementing  the Directive. Moreover, consumer rights and the current  system of this 
Directive in general are not adapted to the introduction of this approach. 

Amendments  6  and  48  concern  the  producer's  obligation  to  indicate  a contact  address 
from which consumers can obtain information  to support their claims. These amendments 
have not been integrated. The system introduced by these amendments might obstruct the 
internal market. 

Finally,  amendment  31 concerns  the  relations  between  the producer  and the  seller.  The 
second part of this amendment has not been integrated by the Commission. It  introduces 
a clause  similar  to  Article  6(1)  of the original  proposal  in  favour  of the seller,  which  is 
not justified.  The  need  to protect  professional  sellers  is  less  important  than  the  need  to 
protect  the  consumer.  In  the  national  legal  orders  relations  between  professionals  are 
normally governed by freedom  of contract. 

6. Commercial  guarantees 

Amendments 8 and 36 concerning the commercial guarantees were accepted. 

7. Final provisions 

Amendment  9  concerns  consumer  information  on  the  seller's  after-sales  service; 
amendment  38  concerns  general  measures  to  advise  consumers  of  their  rights. 
Amendment  38 has been  integrated  by the Commission.  On the contrary,  amendment  9, 
which  refers  to an amendment  by the European  Parliament  which  has not been  adopted, 
has not been  included  because it does not correspond  to a provision  in the operative part 
of the proposal. 

<* 

Amendment  39 mandating  the Commission  to report  on the application  of the  Directive 
has not been accepted. Such a report is not necessary unless it concerns a specific  subject, 
with  a  concrete  perspective.  Moreover,  since  the  transposition  provisions  have  to  be 
integrated  into a very  large and complex  field  of national civil law, the time limit  of two 
years will be far too short to analyse experiences in applying the Directive. 

Amendment  40  introduces  this proposal  for  a Directive  into the  Annex  to the  Directive 
on  injunctions  for  the  protection  of  consumer's  interests.  For  reasons  of  legislative 
technique the amendment has been accepted with drafting emendations. 

Amendment  42  on  the clause  concerning  private  international  law  in the proposal  for  a 
Directive has been integrated. 

Amendment 43 concerns remedies; it has not been included. This problem is too complex 
and touches on too many questions that lie outside the scope of this proposal  for  it to be 
regulated in this context. 

.r 

III. 

OVERVIEW 

COMMISSION'S  OPINION IN REGARD TO THE 
PROPOSED PARLIAMENTARY  AMENDMENTS 

Amend 
ment No 
1 
2 

3 
4 
5 
6 
7 
8 
9 
10 
11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

Provisions concerned 

Commission 

New numbering 

Recital 5 

Recital 10 
Recital 11 

Article  1, paragraph 2, 
point a) 
Article  1, paragraph 2, 
point b) 

Article  1, paragraph 2, 
point c) 
Article  1, paragraph 2, 
point d) 
Article  1, paragraph 2, 
point e) 
Article 1, paragraph 2, 
point f) 

Article 1, paragraph 3 

Article 2, paragraph 2, 
point c) 
Article 2, paragraph 2, 
point d) 
Article 2, paragraph 3 

First citation 
Recital 3 a (new) 

Recital 6 
Recital 6 a (new) 
Recital 7 
Recital 7 a (new) 
Recital 8 
Recital 9 
Recital  10 a (new) 
Recital 11 
Article  1, paragraph 2, point 
a) 
Article  1, paragraph 2, point 
b) 

Article  1, paragraph 2, point 
c) 
Article  1, paragraph 2, point 
d) 
Article  1, paragraph 2, point 
d) a (new) 
Article  1, paragraph 2, point 
d) a (new) 

Article  1, paragraph 2 a 
(new) 
Article 2, paragraph 2, point 
a) 
Article 2, paragraph 2 , 
point c) 
Article 2, paragraph 2, point 
d) 
Article 2, paragraph 2 a 
(new) 
Article 2, paragraph 2 b 
(new) 

Refused 
Accepted 
provided an 
element is 
deleted 
Refused 
Refused 
Refused 
Refused 
Accepted 
Accepted 
Refused 
Refused 
Accepted 

Accepted with 
drafting 
emendation 
Partly accepted 

Accepted 

Accepted 

Accepted with 
drafting 
emendation 
Accepted 

Refused 

Accepted 

Accepted 

Accepted 

Refused 

c 

23 
24 
25 

26 

27 
29 

30 

31 

32 
33 

36 
38 
39 
40 

42 
43 
45 
48 

Article 2, paragraph 3 
Article 3, paragraph 1 
Article 3, paragraph  1  a 
(new) 
Article 3, paragraph 2 

Article 3, paragraph 3 
Article 3 , paragraph 4, 
second subparagraph a 
(new) 
Article 3, paragraph 4, 
second subparagraph b 
(new) 
Article 3, paragraph 5 

Article 3 a (new) 
Article 3 b (new) 

Article 5 
Article 5 b (new) 
Article 5 c (new) 
Article 5 d (new) 

Article 6, paragraph 2 
Article 7, paragraph 2 
Article 3, paragraph 4 
Article 3 c (new) 

Accepted 
Partly accepted 
Refused 

First part only 
accepted 
Refused 
Accepted 

Article 2, paragraph 4 
Article 3, paragraph 1 

Article 3, paragraph 2, first 
indent. 

Article 3, paragraph 5 

Accepted 

Article 3, paragraph 6 

First part only 
accepted 
Accepted 
Accepted with 
amendment 
Accepted 
Accepted 
Refused 
Accepted with 
drafting 
emendation 
Accepted 
Refused 
Accepted 
Refused 

Article 3, paragraph 7 

Article 4 
Article 5 

Article 6 
Article 7 

Article 8 

Article 9, paragraph 2 
Article 10 
Article 3, paragraph 4 

This table  shows that the Commission  accepted  26 out  of the 40  amendments  approved 
by  the  European  Parliament,  some  of  which  have  been  accepted  either  partly  or  with 
drafting  emendations, or with modifications  to the substance. 

> 

Amended proposal for a European Parliament and Council Directive on 

the sale of consumer goods and associated guarantees 

THE  EUROPEAN  PARLIAMENT  AND 
THE  COUNCIL  OF  THE  EUROPEAN 
UNION 

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

and 

in 

Having  regard  to  the  proposal  from  the 
Commission, 

Having  regard 
Economic and Social Committee, 

to  the  opinion  of  the 

Acting  in  accordance  with  the  procedure 
referred to in Article  189b of the Treaty, 

Whereas  the  Community  contributes  to  the 
attainment  of  a  high  level  of  consumer 
protection through the measures it adopts in 
the  framework  of  completing  the  internal 
market; 

Whereas  the  internal  market  comprises  an  Unchanged 
area without  internal  frontiers  in which the 
free  movement  of goods, persons, services 
and  capital  is  guaranteed;  whereas  free 
movement  of  goods  concerns  not  only 
persons  acting  in  the  course  of  business 
but  also  private  individuals;  whereas  it 
implies  that  consumers  resident  in  one 
Member  State  should  be  free  to  purchase 
goods  in  the  territory  of  another  Member 
State on the basis of a minimum  set of  fair 
rules  governing  the  purchase  of  consumer 
goods; 

Unchanged 

Whereas  the  laws  of  the  Member  States 
concerning the sale of consumer goods are 
that 
quite  disparate,  with 
national  consumer  goods  markets  differ 
from  one  another  and  that  competition 
between sellers may be distorted; 

result 

the 

r 

the 

from 

Whereas  consumers  who  are  keen  to  Unchanged 
large  market  by 
benefit 
purchasing  goods  in  Member States other 
than  their  State  of  residence  play  a 
fundamental  role in the completion  of the 
internal market by preventing the artificial 
reconstruction  of  new  frontiers  and  the 
compartmentalization  of markets; whereas 
these  opportunities  have  been  greatly 
broadened 
communication 
new 
technologies  which  allow  ready  access  to 
in  other  Member 
distribution  systems 
States or at international  level; whereas in 
the absence of minimum harmonisation of 
the  rules  governing  the  purchase  of 
consumer  goods,  the  development  of  the 
sale of goods through the medium of new 
distance communication technologies risks 
being impeded; 

by 

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  and  contracts 
where  payments  are  made  by  instalments 
and  ownership  of 
is  not 
the  goods 
transferred 
to  the  consumer  until  all 
instalments due have been paid; 

Whereas  the  creation  of  a  common  Unchanged 
minimum  corpus  of  consumer  law,  valid 
no  matter  where  goods •  are  purchased 
within 
further 
the  Community,  will 
strengthen  consumer  confidence  and 
enable consumers to make the most of the 
internal market; 

9 

concern 

Whereas  the main  difficulties  encountered  Unchanged 
by  consumers  and  the  main  source  of 
disputes  with 
the 
sellers 
non-conformity  of goods with the contract; 
whereas  it  is  therefore  appropriate  to 
approximate national legislation governing 
the sale of consumer goods in this respect, 
without  however  impinging  on  provisions 
and  principles  of  national  law  relating  to 
contractual and non-contractual  liability; 

the  goods  must,  above  all,  Unchanged 

the 

with 

Whereas 
contractual 
conform 
the  notion  of 
specifications;  whereas 
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  this  is  the  traditional 
solution  enshrined  in  the  legal  orders  of 
the Member  States; whereas, nevertheless, 
to  pursue 
the  seller  should  be  free 
remedies  against  his  own  seller  or  the 
producer  when  the  non-conformity  is  the 
result of ah act of commission  or omission 
on their part; 

the  goods  must,  above  all,  Unchanged 

the 

with 

Whereas 
contractual 
conform 
the  notion  of 
specifications;  whereas 
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  this  is  the  traditional 
solution  enshrined  in  the  legal  orders  of 
the Member  States; 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; 

Jo 

Whereas, in the case of non-conformity  of  Unchanged 
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; 

interest  of  a  stable  Deleted 

in 

the 

Whereas, 
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; 

Whereas  it  is  current  practice,  for  certain 
for  sellers  and 
categories  of  goods, 
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; 

to 

for 

their  products  designed 

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

can 

to 

// 

between 

the  parties 

Whereas  the  rights  granted  to  consumers  Unchanged 
should  not  be  excludable  by  common 
consent 
since 
otherwise  the  legal  protection  afforded 
would  be  vitiated;  whereas  consumers 
should  always  be  entitled  to  rely  on  the 
rights resulting  from  this Directive  or  any 
other applicable national provision, even if 
they  accept  the  implementation  of  the 
guarantee;  whereas  consumer  protection 
resulting  from  this Directive should  not be 
reduced  on  the  grounds  that  the  law  of  a 
non-member  country  is  applicable  to  the 
contract; 

Unchanged 

Unchanged 

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  harmonisation,  notably 
by stipulating the producer's direct liability 
for defects  for which he is responsible; 

Whereas  Member  States  must  be  allowed 
in  force  more 
to  adopt  or  maintain 
stringent  provisions,  in  the  field  covered 
by  this  Directive,  to  ensure  a  yet  higher 
level of consumer protection, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Scope and definitions 

1.  The  purpose  of  this  Directive  is  the  Unchanged 
approximation  of the laws, regulations and 
administrative  provisions  of  the  Member 
States  on  the  sale  of  consumer  goods  and 
associated  guarantees  in  order  to  ensure a 
uniform  minimum 
level  of  consumer 
protection  in  the  context  of  the  internal 
market. 

/JL 

2. For the purposes of this Directive, 

Unchanged 

(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; 

(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; 

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

(b) "Consumer goods" means any moveable 
goods 
to 
consumers; 

that  are  supplied  by  sellers 

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

(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. 

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

(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. 

e) "Manufacturer"  means the  manufacturers 
of  the  goods,  the  persons  importing  the 
goods  into  Community  territory,  or  any 
persons  purporting  to  be  the  manufacturer 
by  putting  their  name,  trade  mark  or  other 
distinguishing mark on the goods. 

f)  "Manufacturer's  representative"  means 
the  natural  or  legal  person  who  acts  as  the 
official  distributor  or  official 
service 
provider  of  the  manufacturer,  with  the 
exception  of 
independent  sellers  who 
operate exclusively as retailers; 

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

12 

Article 2 

Conformity with the contract 

1. Consumer  goods must be in conformity  Unchanged 
with the contract of sale. 

2.  Goods  shall  be  deemed 
conformity  with  the  contract  if,  at  the 
moment of delivery to the consumer: 

to  be  in  Unchanged 

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

(b)  they  are  fit  for  the purposes  for  which  Unchanged 
goods of the same type are normally used; 

(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; 

(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; 

(d)  their  quality  and  performance  are 
satisfactory  given  the  nature  of  the  goods 
and the price paip! and  taking  into  account 
the public  statements  made  about  them  by 
the 
his 
representative. 

producer 

seller, 

the 

or 

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. 

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 
the  producer  or  his 
the 
by 
representative. 

seller, 

to  be 

in 
3.  Goods  shall  be  deemed 
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. 

4.  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. 

/V 

Article 3 

Obligations of the seller 

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. 

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. 

2.  When the  goods  are not  in  conformity  Unchanged 
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  - the seller shows that he did not know and 
could  not  reasonably  know  the  statement  could not know the statement in question, 
in question, 

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

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

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

this  presumption 

x 

4. When a lack of conformity  is notified  to 
to  Article  4,  the 
the  seller,  pursuant 
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. 

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. 

the 

seller, 

4.  When a lack of conformity  is notified  to 
seller  must  without 
the 
unreasonable delay offer  to repair the goods 
free of charge within a reasonable period, or 
to  replace  the  goods.  The  consumer  shall 
have  the  right  to  choose  either  of  these 
claims  unless,  in  view  of  the  particular 
nature  of  the  case,  only  one  specific  claim 
appears  economically  appropriate  having 
regard 
interests,  and 
seller's 
reasonable  to  the  consumer.  The  consumer 
need not accept an offer  to repair the goods 
when  this  results  in  a  reduction  in  their 
value;  in  such  a  case  he  may  demand  a 
replacement. 

the 

to 

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

right 

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

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. 

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

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 
responsible  person,  under  the  conditions 
laid down by national law. 

7.  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,  under  the  conditions  laid 
down by national law. 

ic 

Article 4 

Payment by instalments 

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

Article 5 

Suspension of periods of liability 

Where the consumer notifies  the seller 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. 

Article 4 

Obligations of the consumer 

Deleted 

1.  In  order  to  «benefit  from  the  rights  Deleted 
referred  to  in  Article  3  (4)  the  consumer 
must  notify  the  seller  of  any  lack  of 
conformity  within  a period  of  one month 
from  the  date  on  which  he  detected  the 
lack  of  conformity  or  ought  normally  to 
have detected it. 

2.  Notifications  made  pursuant 
to 
paragraph  1  shall  interrupt  the  limitation 
period provided for in Article 3 (4). 

Deleted 

a 

Article 5 

Guarantees 

Article 6 

Commercial guarantees 

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. 

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. 

1. Any  guarantee  offered  shall  legally  bind 
the  offerer  under  the  conditions  laid  down 
in 
the 
the  guarantee  document  and 
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. 

the  duration 

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 
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. 

Article 7 

Consumer information 

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

Article 8 

In  the  annex  of  Directive  98/.../EC  of  the 
European  Parliament  and  the  Council  on 
actions  for  restraint  to  protect  the  interests 

if 

of consumers* the following  is added  : '10) 
Directive 98/.../EC on the sale of  consumer 
goods  and  associated  guarantees'  (OJ No  L 
...of...  1998, p....). 

Article 6 

Article 9 

Binding nature of the provisions 

the 

1.  Any  contractual  terms  or  agreements  Unchanged, 
concluded  with 
before 
notification  of  the  lack  of  conformity 
which waive or restrict the rights resulting 
from  this Directive shall not be binding on 
the consumer. 

seller 

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  Member  States, 
the 
consumers  are  not  deprived  of 
the 
protection afforded  by this Directive. 

territory  of 

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. 

Article 7 

Article 10 

National law and minimum protection 

1. The rights resulting  from  this  Directive 
shall  be  exercised  without  prejudice  to 
other rights which  the  consumer  may  rely 
on  under  the  national  rules  governing 
contractual or non-contractual  liability. 

Unchanged 

force  more 

2.  Member  States  may  adopt  or  maintain  Unchanged 
in 
stringent  provisions, 
compatible  with  the  Treaty,  in  the  field 
covered  by  this  Directive,  to  ensure  a 
higher level of consumer protection. 

Article 8 

Transposition 

1. Member States shall bring into force the 
administrative 
laws, 

regulations 

and 

Article 11 

Unchanged 

1 OJ. Nr. ...of  1998, p.  ... 

/9 

provisions  necessary  to  comply  with  this 
Directive not later than [two years after its 
publication  in  the  Official Journal  of  the 
European  Communities].  They 
shall 
immediately 
the  Commission 
inform 
thereof. 

When  Member  States  adopt 
these 
provisions,  these  shall  contain  a reference 
to this Directive,  or shall be accompanied 
by  such  reference  at  the  time  of  their 
official  publication.  The  procedure  for 
such  reference  shall  be  adopted  by 
Member States. 

2.  Member  States  shall  communicate  to  Unchanged 
the Commission the provisions of national 
law which they adopt in the field covered 
by this Directive. 

Article 9 

Entry into force 

Article 12 

This Directive shall enter into force on the  Unchanged 
20th  day  following  that of  its publication 
in  the  Official  Journal  of  the  European 
Communities. 

Article 10 

Article 13 

This Directive is addressed to the Member  Unchanged 
States. 

Done at Brussels 

For the European Parliament 

For the Council 

The President 

The President 

ocrc 

ISSN 0254-1475 

COM(98) 217 final 

DOCUMENTS 

EN 

10  06 

Catalogue number  : CB-CO-98-22&-EN-C 

ISBN 92-78-33063-9 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg 

:JI