COMMON POSITION (EC) No 51/98 adopted by the Council on 24 September 1998 with a view to adopting European Parliament and Council Directive 98/ /EC, of ... on certain aspects of the sale of consumer goods and associated guarantees
Date: 1998-09-24
Institutions: Council of the European Union
Subjects: approximation of laws, consumer goods, consumer protection, contract, guarantee, sale

C 333/46

EN

Official  Journal  of  the  European  Communities

30.10.98

COMMON  POSITION  (EC)  No  51/98

adopted  by  the  Council  on  24  September  1998

with  a  view  to  adopting  European  Parliament  and  Council  Directive  98/

/EC,  of  . . .  on

certain  aspects  of  the  sale  of  consumer  goods  and  associated  guarantees

(98/C 333/04)

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL  OF
THE  EUROPEAN  UNION,

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

Having  regard  to  the  proposal  from  the  Commission (1),

by  new  communication  technologies  which  allow
ready  access  to  distribution  systems 
in  other
Member  States  or 
in  non-member  countries;
whereas, in the absence of minimum harmonisation
of  the  rules  governing  the  sale  of  consumer  goods,
the  development  of  the  sale  of  goods  through  the
medium 
communication
distance 
technologies  risks  being  impeded;

new 

of 

Having regard to the opinion of the Economic and Social
Committee (2),

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189b  of  the  Treaty (3),

(4) Whereas the creation of a common set of minimum
rules of consumer law, valid no matter where goods
the  Community,  will
are  purchased  within 
enable
confidence  and 
strengthen 
consumers  to  make  the  most  of  the 
internal
market;

consumer 

the 

internal 

in  which 

(1) Whereas  the  internal  market  comprises  an  area
without 
free
frontiers 
movement of goods, persons, services and capital is
guaranteed;  whereas  free  movement  of  goods
concerns not only transactions by persons acting in
the  course  of  a  business  but  also  transactions  by
private 
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  uniform  minimum
set  of  fair  rules  governing  the  sale  of  consumer
goods;

individuals;  whereas 

implies 

it 

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

(3) Whereas  consumers  who  are  keen  to  benefit  from
the  large  market  by  purchasing  goods  in  Member
States  other  than  their  State  of  residence  play  a
fundamental  role  in  the  completion  of  the  internal
market;  whereas  the  artificial  reconstruction  of
frontiers  and  the  compartmentalisation  of  markets
should  be  prevented;  whereas  the  opportunities
available to consumers have been greatly broadened

(5) Whereas  the  main  difficulties  encountered  by
consumers  and  the  main  source  of  disputes  with
sellers  concern  the  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;

to 

the  different  national 
in  certain  national 

(6) Whereas  the  goods  must,  above  all,  conform  with
the contractual specifications; whereas the principle
of  conformity  with  the  contract  may  be  considered
legal
as  common 
traditions;  whereas 
legal
traditions  it  may  not  be  possible  to  rely  solely  on
this  principle  to  ensure  a  minimum 
level  of
protection  for  the  consumer;  whereas  under  such
legal  traditions,  in  particular,  additional  national
provisions  may  be  useful  to  ensure  that  the
consumer  is  protected  in  cases  where  the  parties
have  agreed  no  specific  contractual  terms  or  where
the  parties  have  concluded  contractual  terms  or
agreements  which  directly  or  indirectly  waive  or
restrict  the  rights  of  the  consumer  and  which,  to
the  extent  that  these  rights  result  from  this
Directive,  are  not  binding  on  the  consumer;

(1) OJ  C  307,  16.10.1996,  p.  8,  and  OJ  C  148,  14.5.1998,

p.  12.

(2) OJ  C  66,  3.3.1997,  p.  5.
(3) Opinion  of  the  European  Parliament  of  10  March  1998  (OJ
C  104,  6.4.1998,  p.  30),  Council  Common  Position  of
24 September 1998 and European Parliament Decision of . . .
(not  yet  published  in  the  Official  Journal).

(7) Whereas, in order to facilitate the application of the
principle  of  conformity  with  the  contract,  it  is
useful  to  introduce  a  rebuttable  presumption  of
conformity  with  the  contract  covering  the  most
common situations; whereas that presumption does
not  restrict  the  principle  of  freedom  of  contract;

30.10.98

EN

Official  Journal  of  the  European  Communities

C 333/47

whereas,  furthermore,  in  the  absence  of  specific
contractual  terms,  as  well  as  where  the  minimum
protection clause is applied, the elements mentioned
in  this  presumption  may  be  used  to  determine  the
lack  of  conformity  of  the  goods  with  the  contract;
the  quality  and  performance  which
whereas 
consumers  can  reasonably  expect  will  depend  on
the nature of the goods, including whether they are
second-hand;  whereas 
new  or 
the  elements
mentioned 
in  the  presumption  are  cumulative;
whereas, if the circumstances of the case render any
particular  element  manifestly  inappropriate,  the
remaining elements of the presumption nevertheless
still apply;

(8) 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,  as
provided  for  by  national  law,  to  pursue  remedies
against  the  producer,  a  previous  seller  in  the  same
chain of contracts or any other intermediary, unless
he  has  renounced  that  entitlement;  whereas  the
rules  governing  against  whom  and  how  the  seller
may  pursue  such  remedies  are  to  be  determined  by
national law;

(9) Whereas,  in  the  case  of  non-conformity  of  the
goods  with  the  contract,  consumers  should  be
entitled  to  have  the  goods  restored  to  conformity
with  the  contract  free  of  charge,  choosing  either
repair  or  replacement,  or,  failing  this,  to  have  the
price  reduced  or  the  contract  rescinded;

(10) Whereas  the  consumer  in  the  first  place  may
require  the  seller  to  repair  the  goods  or  to  replace
them  unless  those  remedies  are 
impossible  or
disproportionate;  whereas  whether  a  remedy  is
disproportionate  should  be  determined  objectively;
whereas  a  remedy  would  be  disproportionate  if  it
imposed,  in  comparison  with  the  other  remedy,
unreasonable  costs;  whereas,  in  order  to  determine
whether  the  costs  are  unreasonable,  the  costs  of
one  remedy  should  be  significantly  higher  than  the
costs  of  the  other  remedy;

(11) Whereas in cases of a lack of conformity, the seller
may  always  offer  the  consumer,  by  way  of
settlement,  any  available  remedy;  whereas  it  is  for
the  consumer  to  decide  whether  to  accept  or  reject
this  proposal;

(12) Whereas  the  references  to  the  time  of  delivery  do
not imply  that Member  States have  to  change their
rules  on  the  passing  of  the  risk;

(13) Whereas  Member  States  may  provide  that  any
reimbursement  to  the  consumer  may  be  reduced  to

take  account  of  the  use  the  consumer  has  had  of
the goods since they were delivered to him; whereas
the detailed arrangements whereby rescission of the
contract  is  effected  may  be  laid  down  in  national
law;

(14) Whereas  the  specific  nature  of  second-hand  goods
makes  it  generally  impossible  to  replace  them;
whereas 
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;

consumer’s 

therefore 

the 

(15) 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;

(16) Whereas  Member 

States  may  provide 

for
suspension  or  interruption  of  the  period  during
lack  of  conformity  must  become
which  any 
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;

(17) Whereas Member States should be allowed to set a
period within which the consumer must inform the
seller  of  any  lack  of  conformity;  whereas  Member
States  may  ensure  a  higher  level  of  protection  for
the  consumer  by  not 
such  an
obligation;  whereas 
in  any  case  consumers
throughout  the  Community  should  have  at  least
two  months  in  which  to  inform  the  seller  that  a
lack  of  conformity  exists;

introducing 

(18) Whereas  Member  States  should  guard  against  such
a  period  placing  at  a  disadvantage  consumers
shopping  across  borders;  whereas  all  Member
States  should  inform  the  Commission  of  their  use
of  this  provision;  whereas  the  Commission  should
monitor  the  effect  of  the  varied  application  of  this
provision on consumers and on the internal market;
whereas  information  on  the  use  made  of  this
provision  by  a  Member  State  should  be  available
to  the  other  Member  States  and  to  consumers
and 
the
Community; whereas a summary of the situation in
all  Member  States  should  therefore  be  published  in

consumer  organisations 

throughout 

C 333/48

EN

Official  Journal  of  the  European  Communities

30.10.98

the  Official 
Communities;

Journal 

of 

the 

European

2.

For  the  purposes  of  this  Directive:

(19) Whereas,  for  certain  categories  of  goods,  it  is
current  practice  for  sellers  and  producers  to  offer
guarantees  on  goods  against  any  defect  which
becomes  apparent  within  a  certain  period;  whereas
this  practice  can  stimulate  competition;  whereas,
while  such  guarantees  are  legitimate  marketing
tools,  they  should  not  mislead  the  consumer;
whereas,  to  ensure  that  consumers  are  not  misled,
guarantees  should  contain  certain 
information,
including  a  statement  that  the  guarantee  does  not
affect  the  consumer’s  legal  rights;

(20) Whereas  the  parties  may  not,  by  common  consent,
restrict  or  waive  the  rights  granted  to  consumers,
since otherwise the legal protection afforded would
be  thwarted;  whereas  this  principle  should  apply
also  to  clauses  which  imply  that  the  consumer  was
aware  of  any  lack  of  conformity  of  the  consumer
goods  existing  at  the  time  the  contract  was
concluded;  whereas  the  protection  granted  to
consumers  under  this  Directive  should  not  be
reduced  on  the  grounds  that  the 
law  of  a
non-member  State  has  been  chosen  as  being
applicable  to  the  contract;

(21) 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  this  trend  and
this
the  experience  acquired 
Directive,  it  may  be  necessary  to  envisage  more
far-reaching  harmonisation,  notably  by  providing
for  the  producer’s  direct  liability  for  defects  for
which  he  is  responsible;

implementing 

in 

(22) Whereas  Member  States  should  be  allowed  to
adopt  or  maintain 
stringent
in 
provisions  in  the  field  covered  by  this  Directive  to
ensure  an 
consumer
protection,

even  higher 

force  more 

level  of 

HAVE  ADOPTED  THIS  DIRECTIVE:

Article  1

Scope  and  definitions

1.
The  purpose  of  this  Directive  is  the  approximation
of  the  laws,  regulations  and  administrative  provisions  of
the  Member  States  on  certain  aspects  of  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.

(a)

‘consumer’  shall  mean  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;

(b)

‘consumer  goods’  shall  mean  any  tangible  movable
item,  with  the  exception  of:

— goods  sold  by  way  of  execution  or  otherwise  by

authority  of  law,

— water and gas where they are not put up for sale

in  a  limited  volume  or  set  quantity,

— electricity;

(c)

(d)

(e)

(f)

‘seller’  shall  mean  any  natural  or  legal  person  who,
under  a  contract,  sells  consumer  goods  in  the  course
of  his  trade,  business  or  profession;

‘producer’  shall  mean  the  manufacturer  of  consumer
goods,  the  importer  of  consumer  goods  into  the
territory of the Community or any person purporting
to be a producer by placing his name, trade mark or
other  distinctive  sign  on  the  consumer  goods;

‘guarantee’ shall mean any undertaking by a seller or
producer  to  the  consumer,  given  without  extra
charge,  to  reimburse  the  price  paid  or  to  replace,
repair  or  handle  consumer  goods  in  any  way  if  they
do  not  meet  the  specifications  set  out 
in  the
guarantee  statement  or  in  the  relevant  advertising;

‘repair’  shall  mean, 
conformity, 
consumer 
bringing 
conformity  with  the  contract  of  sale.

in 

the  event  of 

lack  of
into

goods 

3. Member  States  may  provide  that  the  expression
‘consumer goods’ does not cover second-hand goods sold
at  public  auction  where  consumers  have  the  opportunity
of  attending  the  sale  in  person.

4.
Contracts  for  the  supply  of  consumer  goods  to  be
manufactured or produced shall also be deemed contracts
of  sale  for  the  purpose  of  this  Directive  unless  the
consumer  has  to  supply  a  substantial  part  of  the
materials  necessary  for  manufacture  or  production.

Article  2

Conformity  with  the  contract

The  seller  must  deliver  goods  to  the  consumer

1.
which  are  in  conformity  with  the  contract  of  sale.

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C 333/49

Consumer  goods  are  presumed  to  be  in  conformity

2.
with  the  contract  if  they:

(a) 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;

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

(c) are fit for the purposes for which goods of the same

type  are  normally  used;

(d) show the quality and performance which are normal
in  goods  of  the  same  type  and  which  the  consumer
can reasonably expect, given the nature of the goods
and taking into account any public statements on the
specific characteristics of the goods made about them
by  the  seller,  the  producer  or  his  representative,
particularly  in  advertising  or  on  labelling.

There  shall  be  deemed  not  to  be  a 

3.
lack  of
conformity for the purposes of this Article if, at the time
the  contract  was  concluded,  the  consumer  was  aware,  or
could  not  reasonably  be  unaware  of,  the 
lack  of
conformity.

The  seller  shall  not  be  bound  by  public  statements,

4.
as  referred  to  in  paragraph  2(d)  if  he:

— shows that he was not, and could not reasonably have

been,  aware  of  the  statement  in  question,

— shows  that  by  the  time  of  conclusion  of  the  contract

the  statement  had  been  corrected,  or

— shows  that  the  decision  to  buy  the  consumer  goods
could  not  have  been  influenced  by  the  statement.

5.
Any  lack  of  conformity  resulting  from  incorrect
installation of the consumer goods shall be deemed to be
equivalent  to 
if
installation  forms  part  of  the  contract  of  sale  of  the
goods and the goods were installed by the seller or under
his  responsibility.

lack  of  conformity  of  the  goods 

In  the  case  of  a  lack  of  conformity,  the  consumer
2.
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
in  accordance  with
with  regard 
paragraphs  4  and  5.

those  goods, 

to 

3.
In  the  first  place,  the  consumer  may  require  the
seller  to  repair  the  goods  or  he  may  require  the  seller  to
replace  them,  in  either  case  free  of  charge,  unless  this  is
impossible  or  disproportionate.

A  remedy  shall  be  deemed  to  be  disproportionate  if  it
imposes costs on the seller which, in comparison with the
alternative 
into
remedy,  are  unreasonable, 
account:

taking 

— the  value  the  goods  would  have  if  there  were  no  lack

of  conformity,

— the  significance  of  the  lack  of  conformity,  and

— whether  the  alternative  remedy  could  be  completed
without  significant  inconvenience  to  the  consumer.

time 

Any  repair  or  replacement  shall  be  completed  within  a
reasonable 
significant
and  without 
inconvenience  to  the  consumer,  taking  account  of  the
nature  of  the  goods  and  the  purpose  for  which  the
consumer  required  the  goods.

any 

If  the  consumer  is  entitled  to  require  neither  repair
4.
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.

The  consumer  is  not  entitled  to  have  the  contract

5.
rescinded  if  the  lack  of  conformity  is  minor.

Article  4

Right  of  redress

Article  3

Rights  of  the  consumer

1.
The  seller  shall  be  liable  to  the  consumer  for  any
lack  of  conformity  which  exists  at  the  time  the  goods
were delivered.

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  entitlement.  The  person  or  persons  liable

C 333/50

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Official  Journal  of  the  European  Communities

30.10.98

against  whom  the  final  seller  may  pursue  remedies,
together  with  the  relevant  actions  and  conditions  of
exercise,  shall  be  determined  by  national  law.

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.

Article  5

Time  limits

1.
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.

2. Member States may provide that, in order to benefit
from  his  rights,  the  consumer  must  inform  the  seller  of
the  lack  of  conformity  within  a  period  of  two  months
from  the  date  on  which  he  detected  such  lack  of
conformity.

Member  States  shall  inform  the  Commission  of  their  use
of  this  paragraph.  The  Commission  shall  monitor  the
effect  of  the  existence  of  this  option  for  the  Member
States  on  consumers  and  on  the  internal  market.

Not  later  than  . . . (1),  the  Commission  shall  prepare  a
report  on  the  use  made  by  Member  States  of  this
paragraph.  This  report  shall  be  published  in  the  Official
Journal  of  the  European  Communities.

3.
Unless  proved  otherwise,  any  lack  of  conformity
which becomes apparent within six months of delivery of
the  goods  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.

Article  6

Guarantees

A  guarantee  shall  be  legally  binding  on  the  offerer
in  the  guarantee
laid  down 

1.
under  the  conditions 
statement  and  the  associated  advertising.

2.

The  guarantee  shall:

— state  that  the  consumer  has 

legal  rights  under
applicable  national  legislation  governing  the  sale  of
consumer  goods  and  make  clear  that  those  rights  are
not  affected  by  the  guarantee,

— set  out  in  plain  intelligible  language  the  contents  of
the  guarantee  and  the  essential  particulars  necessary

(1) 42  months  after  entry  into  force  of  this  Directive.

3. On  request  from  the  consumer,  the  guarantee  shall
be  made  available  in  writing  or  feature  in  another
durable  medium  available  and  accessible  to  him.

4. Within its own territory, the Member State in which
the  consumer  goods  are  marketed  may,  in  accordance
with  the  rules  of  the  Treaty,  provide  that  the  guarantee
be  drafted  in  one  or  more  languages  which  it  shall
determine  from  among  the  official  languages  of  the
Community.

5.
Should  a  guarantee  infringe  the  requirements  of
paragraphs  2,  3  or  4,  the  validity  of  this  guarantee  shall
in no way be affected, and the consumer can still rely on
the  guarantee  and  require  that  it  be  honoured.

Article  7

Binding  nature

1.
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.

in  the  case  of
Member  States  may  provide  that, 
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.

2. Member States shall take the necessary measures to
ensure  that  consumers  are  not  deprived  of  the  protection
afforded by this Directive as a result of opting for the law
of  a  non-member  State  as  the  law  applicable  to  the
contract  where  the  contract  has  a  close  connection  with
the  territory  of  the  Member  States.

Article  8

National  law  and  minimum  protection

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

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

Article  9

Transposition

1. Member  States  shall  bring  into  force  the  laws,
regulations  and  administrative  provisions  necessary  to
comply  with  this  Directive  not  later  than  . . . (1).  They
shall  forthwith  inform  the  Commission  thereof.

When  Member  States  adopt  these  measures,  they  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 
the
shall 
Commission  the  provisions  of  national  law  which  they
adopt  in  the  field  covered  by  this  Directive.

communicate 

States 

to 

Article  10

Review

The  Commission  shall,  not  later  than  . . . (2),  review  the
application  of  this  Directive  and  submit  to  the  European
Parliament  and  the  Council  a  report.  The  report  shall
examine, 
the
the  case 
producer’s  direct  liability  and,  if  appropriate,  shall  be
accompanied  by  proposals.

introducing 

inter  alia, 

for 

Article  11

Entry  into  force

This  Directive  shall  enter  into  force  on  the  day  of  its
publication  in  the  Official  Journal  of  the  European
Communities.

Article  12

This  Directive  is  addressed  to  the  Member  States.

Done  at  . . .

For  the
European Parliament

The  President

For  the  Council

The  President

(1) 36  months  after  entry  into  force  of  this  Directive.

(2) Seven  years  after  entry  into  force  of  this  Directive.

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STATEMENT  OF  THE  COUNCIL’S  REASONS

I.

INTRODUCTION

1. On  23  August  1996,  the  Commission  sent  the  Council  a  proposal,  based  on
Article  100a  of  the  EC  Treaty,  on  the  sale  of  consumer  goods  and  associated
guarantees.

2. The  European  Parliament  and  the  Economic  and  Social  Committee  delivered  their

opinions  on  10  March  1998  and  27  November  1996  respectively.

3. On  1  April  1998,  the  Commission  forwarded  an  amended  proposal  to  Council.

4. On  24  September  1998,  the  Council  adopted  its  Common  Position  in  accordance  with

Article  189b(2),  second  subparagraph  of  the  Treaty.

II. OBJECTIVE

The  future  Directive  is  designed  to  provide  a  uniform  minimum  level  of  consumers’  legal
rights  to  remedies  in  the  event  of  non-conformity  of  a  product  with  the  contract  of  sale
existing at the time of delivery and to ensure transparency of guarantees offered voluntarily
by sellers and manufacturers. It only covers goods and sales between professional sellers and
non-professional  consumers.

III. ANALYSIS  OF  THE  COMMON  POSITION

General

The Council sought to increase consumer protection in an area which is the main source of
consumer complaints regarding transactions, in particular transboundary transactions in the
single  market.  In  doing  so  it  also  aimed  at  striking  a  reasonable  balance  between  the
interests  of  consumers  and  sellers  in  order  to  allow  them  to  profit  entirely  and  equitably
from  the  internal  market.  The  Council  accepted  or  took  account  of  a  number  of  the
amendments  of  the  European  Parliament.

Articles

(the  reference  texts  are  the  Common  Position  and  the  Commission  amended  proposal)

Article  1: S c o p e   a n d   d e f i n i t i o n s

— paragraph  1:

s c o p e

the  Council  added  the  terms  ‘on  certain  aspects’  for  the  sake  of  clarity.  The  title  of  the
draft  Directive  was  completed  accordingly

— paragraph  2: d e f i n i t i o n s   i n c l u d i n g   e x c e p t i o n s

in  the  definition  of  ‘consumer’  (2a),  the  Council  accepted  amendment  11  and  deleted
therefore  the  term  ‘directly’  proposed  by  the  Commission.

Regarding  ‘consumer  goods’  (2b),  the  Council  added  ‘tangible’  and  felt  that  three
exceptions  plus  the  one  in  new  paragraph  3  are  useful  clarifications,  while  the  explicit
mention  of  buildings  was  regarded  as  unnecessary.

As  for  the  ‘seller’  (2c),  the  reference  to  ‘exchange  for  another  asset’  would  have  posed
problems  in  several  Member  States  and  was  therefore  deleted.

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The definition of the manufacturer or rather the ‘producer’ (2d) was accepted, while the
one of the ‘manufacturer’s representative’ was not retained because of the differences in
Member  States’  legislation  regarding  the  issue  of  representation.

Regarding  ‘guarantees’  (2e),  the  Council  preferred  this  more  neutral  notion  to
‘commercial  guarantee’  as  the  adjective  would  have  caused  confusion  in  some  Member
States. For the sake of clarity, the Council retained the definition as initially proposed by
the  Commission  and  amended  it  slightly.  For  the  same  reason,  the  definition  of  ‘repair’
(2f)  was  added

— paragraph  3:

s e c o n d - h a n d   g o o d s   s o l d   a t   p u b l i c   a u c t i o n s

the  optional  exemption  in  this  paragraph  is  designed  to  take  account  of  the  specific
situation  in  some  Member  States

— paragraph  4:
p r o d u c e d

s u p p l y   o f   c o n s u m e r   g o o d s  

t o   b e   m a n u f a c t u r e d   o r

the Council accepted amendment 17 and added an element it regarded as relevant in this
context.

Article  2

In paragraph 2b, the Council preferred the Commission’s original proposal which originates
from  the  Vienna  Convention.

In paragraph 2d, the Council accepted part of amendment 20. For reasons of applicability,
it inserted elements of the Commission’s initial proposal and replaced ‘entitled to expect’ by
‘can  reasonably  expect’.

In  paragraph  3,  the  Council  took  over  amendment  21  with  slight  changes.

In  paragraph  5,  the  Council  could  support  the  principle  of  amendment  23  regarding  the
installation instructions but felt that this issue should be re-examined at the second reading,
taking into account the condition that the product should be designed for installation by the
consumer (and not by a professional) and that the written installation instructions should be
appropriate  for  the  average  consumer.

Recital  7  explains  the  concept  of  Article  2.

Article  3

In paragraph 1 the Council followed the European Parliament and transferred the last part
of  Article  3(1)  to  Article  2(3).  It  moved  the  issue  of  time  limits  to  Article  5.

Paragraph  2  of  the  Commission  proposal  was  transferred  to  Article  2.

As  regards  the  hierarchy  of  consumers’  rights,  the  Council  largely  followed  in  paragraph  3
the  concept  of  the  European  Parliament  with,  in  particular,  the  following  differences  or
nuances:

The  Council  felt  that  the  criterion  of  proportionality,  explained  further  in  recital  10,  was
more  appropriate  with  a  view  to  existing  national  law  than  the  criterion  of  ‘economically
appropriate’.  In  this  spirit  of  proportionality,  it  excluded  the  rescission  of  the  contract  in
cases  of  a  minor  lack  of  conformity.  The  issue  of  recommencement  or  suspension  of  the
time  limit  in  the  case  of  replacement  or  repair  (amendments  29  and  33)  is  left  to  Member
States  as  stated  in  recital  16.  Recital  13  makes  it  clear  that  Member  States  are  also  free  to
adopt rules on the reimbursement in the case of goods already used by the consumer as well
as  on  the  detailed  arrangements  of  the  rescission  of  the  contract.

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Paragraph  4  of  Article  3  makes  it  clear  that  the  consumer  may  require  an  appropriate
reduction  of  the  price  or  have  the  contract  rescinded:

— if  the  consumer  is  entitled  to  neither  repair  nor  replacement,  or

— if  the  seller  has  not  completed  the  remedy  within  a  reasonable  time,  or

— if  the  seller  has  not  completed  the  remedy  with  no  significant  inconvenience  to  the

consumer (1).

Recital  11  makes  it  clear  that  the  seller  may  of  course  always  offer  the  consumer  any
available  remedy  which  the  consumer  is  free  to  accept  or  reject.

As  for  second-hand  goods,  recital  14  states  that  replacement  is  generally  not  available  for
these  goods  (see  also  Article  7  and  recital  20).

Regarding the issue of payment by instalments (amendment 32), the Council considered that
this  is  a  matter  of  consumer  credit  rules.

Article  4

The Council accepted the term ‘person liable’, but preferred leaving the issue of contractual
safeguard  clauses  also  to  Member  States.

Article  5

The  Council  concentrated  the  time  limits  in  this  Article  and  added  in  paragraph  1  as  an
important element of consumer protection, a reference to the limitation period. As recital 15
explains, such limitation periods may not be less than two years (but can of course continue
to  be  10  years  or  more,  according  to  existing  national  law),  and  may  not  be  less  than  two
years  from  the  time  of  delivery  where  such  a  period  starts  in  some  Member  States  before
that  time.

In  paragraph  2,  the  Council  added  the  possibility  for  Member  States  to  provide  a
notification obligation which, in the existing law and practice of some Member States, is the
basis of a considerably more advantageous system for consumers, for example the system in
which  the  limitation  period  of  two  years  does  not  begin  until  notification  is  made.

In  order  to  prevent  problems  for  the  functioning  of  the  single  market  which  might  arise
from this possibility being given to Member States, the Council accompanied this clause by
a  scheme  of  information  and  monitoring  including  a  report  by  the  Commission.

Article  6

As  for  paragraph  1,  the  Council  concluded  after  thorough  discussion,  that  the  criterion  of
the  ‘more  advantageous  position’  was  not  applicable  and  deleted  it.

In  paragraph  2,  first  indent,  the  Council  accepted  the  reference  to  the  legal  rights  of  the
consumer.  It  added  as  an  important  clarification  in  paragraph  5  the  provision  that  the
guarantee  is  still  valid  even  if  it  infringes  the  requirements  set  out  in  this  Article.

Article  7

This Article also covers second-hand goods in order to take account of their specific nature
(see  also  Articles  2  and  3  and  recitals  6,  7,  14  and  20).

(1) At  the  second  reading,  it  may  be  useful  to  review  some  of  the  translations  of  this  paragraph.

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Article  9

Given  the  complexity  of  the  matter  covered  by  this  Directive,  the  Council  chose  a
transposition  period  of  three  years.

Article  10

The  Council  carefully  examined  the  question  of  producer  liability,  addressed  by  the
European Parliament in particular in amendments 16, 18, 25 and 48. It felt that this was an
important  aspect  of  consumer  protection,  but  shared  the  Commission’s  view  that  further
study  was  necessary  before  considering  the  integration  of  this  aspect  into  the  Directive.  It
provided  therefore  for  a  revision  clause  including  the  reference  to  proposals  by  the
Commission  (see  also  recital  21).

As regards amendment 43, the Council felt that this issue was too complex and should instead
be  covered  by  the  Commission  action  plan  on  extra-judicial  procedures.