Opinion of the Commission pursuant to Article 189B(2)(d) of the EC Treaty, on the European Parliament's amendment to the Council's common position regarding the proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees
Date: 1999-01-19
Institutions: European Commission
Subjects: consumer goods, consumer information, consumer protection, contract, guarantee

COMMISSION OF THE EUROPEAN  COMMUNITIES 

Brussels,  19.01.1999 

COM(l 999)16  final 

96/0161 (COD) 

OPINION OF THE  COMMISSION 
pursuant to Article  189 b (2) (d) of the EC Treaty, 
on the European Parliament's  amendment 
to the Council's common position regarding the 

proposal for a 
EUROPEAN PARLIAMENT AND COUNCIL  DIRECTIVE 

on the sale of consumer goods and associated guarantees, 

AMENDING THE PROPOSAL OF THE  COMMISSION 
pursuant to Article  189 a (2) of the EC Treaty 

EXPLANATORY  MEMORANDUM 

I - Overview of the procedure 

On  18 June  1996 the Commission  adopted the proposal  for  a Directive on the  sale of 
consumer goods and associated guarantees. 

The Economic and Social Committee delivered its opinion at its 340th plenary  session 
on 27 and 28 November  1996. 

On  10  March  1998  the  European  Parliament  adopted  a  legislative  resolution 
embodying  the  opinion  of  the  European  Parliament,  acting  on  a  proposal  from  its 
rapporteur, Mrs Kuhn. The Commission presented an amended proposal  on 31 March 
1998. 

For its part, the  Council reached  a political  agreement  on 24 April  1998, on the  basis 
of which the common position was formally  adopted on 24 September  1998. 

On  25  September  1998  the  Commission  presented  its  Communication  on  the 
Council's common position to the European Parliament. 

On  17  December  1998,  acting  on  a  proposal  from  its  rapporteur,  Mrs  Kuhn,  the 
European  Parliament  adopted  the  recommendation  for  the  second  reading  on  the 
common position. 

Pursuant to Article  189b(2)(d) of the Treaty, the Commission must deliver an opinion 
for  the  attention  of  the  Council  on  the  amendments  adopted  by  Parliament.  In  this 
particular  case  this  opinion  amends  the  Commission's  proposal  pursuant  to  Article 
189a(2). 

II - Comments on the amendments 

The, European Parliament's amendments may be grouped into several categories. They 
concern the Directive's legal basis, its scope, the principle  of conformity  of the  goods 
with the contract, the procedures for  invoking the consumer's rights, the possibility  of 
excluding the seller's liability, the producer's obligations, and the final provisions. 

X 

1. 

The legal basis 

Amendment  1 is designed  to supplement the Directive's  legal basis with Article  129a 
of the Treaty, in particular paragraph  1(a) thereof.  Although the Commission has not 
included  this  amendment  in  its  amended  proposal, it proposes  including  - by  way  of 
compromise  in the context  of the legislative procedure  - a new recital  acknowledging 
that the Community contributes to the protection  of consumers' economic interests by 
the  measures  it  adopts  in  the  context  of  the  internal  market,  in  order  to  promote 
consumers' interests and to guarantee a high level of consumer protection. This recital 
corresponds to the text of the new Article  153 in the version of the Amsterdam Treaty. 

2. 

Scope 

Amendment  11,  designed  to widen the  scope of the Directive, has not been  accepted 
because the wording of the article in the common position matches the  corresponding 
provision  in  the  1980  Vienna  Convention  on  contracts  for  the  international  sale  of 
goods.  Since  many  provisions  in  the  proposal  for  a  Directive  correspond  to  the 
pertinent  provisions  of  the  Vienna  Convention,  it  is  desirable  wherever  possible  to 
maintain  this  parallelism.  At  any  rate  Member  States  may  waive  this  provision  by 
applying the minimum clause when transposing the Directive into their national law. 

3. 

The principle of conformity  of the goods with the contract 

Amendments  3,  12  and  15  contain  certain  modifications  as  regards  the  principle  of 
conformity  of the good with the contract and its implementation. . 
The first  of these amendments has not been accepted because the European  Parliament 
does  not  propose  amending  the  wording  of  the  corresponding  provision  in  the  text 
itself, and because the current version of the recital better matches the current wording 
of this article. 
Nor has the Commission  accepted Amendment  12. Since the wording  of the article to 
be  modified  is  similar  to  that  of  the  1980  Vienna  Convention  concerning  an 
equivalent provision, it is preferable  not to accept the modification  and to maintain the 
parallelism.  At  any  rate  Member  States  may  waive  this  provision  by  applying  the 
minimum clause when transposing the text. 
However,  Amendment  15, which  corresponds to a practical  need, will be included  in 
the amended proposal, albeit in a somewhat modified  form.  The idea here is to resolve 
the  problems  raised  by  the  Council  at  first  reading,  which  had  led  it  to  reject  this 
amendment. 

4. 

The procedures for invoking the consumer's rights 

The  Commission  rejects  Amendment  33  on  grounds  of  legislative  technique.  The 
recitals  of  a  Directive  are  explanations  of  the  wording  designed  to  facilitate 
interpretation  of  its  articles. The purpose  of recital  14 is to  explain  that  - because  of 

3 

the  specific  nature  of  second-hand  goods  -  it  is  impossible  to  replace  them.  The 
explanation in the recital is sufficient-and  so there is no need to include a reference  to 
this recital in Article 3. 
Neither  does the  Commission  accept  Amendment  18. The  Commission  had  in  effect 
approved  the  common  position  in which the  Council  maintained  its  ranking  scheme. 
This amendment  is not necessary  in that Article  3(2) of the common position  already 
provides for bringing the good into conformity  free of charge. 
Besides, the Commission  in its amended  proposal  has clarified  a potential  ambiguity 
in certain  language  versions  (relating  to  Article  3 (4)), mentioned  in the  explanatory 
memorandum  of the Council's  common position and  also raised  in the  context  of the 
Parliament's  second  reading.  The  correction  is  in  line  with  the  explanation  of  the 
content of this provision provided by the Council in its explanatory  memorandum. 

5. 

The possibility of waiving the seller's liability 

Amendment  34  provides  that,  in  the  case  of  contracts  for  the  sale  of  works  of  art, 
collectors'  items  or  antiques,  Member  States  may  provide  that  the  parties  may 
contractually waive all liability on the seller's part. The Commission has not  accepted 
this  amendment  because  it  considers  that  in  practice  this  provision  would  allow 
professional  sellers to exclude liability on a systematic basis in their general terms and 
conditions. 

6. 

The producer's  obligations 

The  Commission rejects  Amendment  5 because it does not correspond  to a provision 
of the Directive. 

The Commission accepts Amendment  19. This amendment usefully  simplifies the text 
because it is clear that the  final  seller,  as a professional,  may waive his right to  seek 
remedies against the party responsible. 

7. 

Final provisions 

Amendments 25, 26, 27 and 28 concern the Directive's final provisions. 
Firstly,  the  Commission  accepts  Amendment  25. Notably,  the  Directive's  objectives 
are to  guarantee  the  existence  of  a  common minimal  standard  in  all  Member  States 
and  to  ensure  that  consumers  can  make  the  most  of  the  internal  market.  In  order  to 
safeguard  these  objectives  it  is  essential  that  consumers  be  informed  of  these  new 
rights  and  that  they  be  able  to  rely  on  a  common  corpus  of  rights  in  all  Member 
States. 
Amendment  26  has  also  been  accepted,  though  the  wording  has  been  modified  in 
order to  ensure  better  legislative  drafting.  In effect  this  amendment  is justified,  after 
the entry into effect  of Directive 98/27 on injunctions. 

However,  Amendments  27  and  28  have  not  been  accepted.  Amendment  27  on 
complaint  procedures  and  remedies  is  considered  to  be  an  overly  complex  problem 
and  addresses  too  many  questions  that  lie  outside  the  scope  of  the  Directive.  These 
questions  cannot  be  satisfactorily  settled  in this  context.  As  regards  Amendment  28, 
the Commission had already approved the Council's common position. 

Ill - Amended  proposal 

In view of the foregoing,  and in accordance with Article  189(a)(2), the  Commission's 
amended proposal incorporates amendments  15,  19, 25 and 26. 

6 

Amended proposal for a European Parliament and Council 
Directive on the sale of consumer goods and associated 
guarantees 

COMMON POSITION 

AMENDED  PROPOSAL 

Whereas, in order to promote the interests 
of  consumers  and  to  ensure  a  high  level 
of  consumer  protection,  the  Community 
of 
the 
contributes 
consumers'  economic  interests  through 
the  measures  it  adopts  in  the  context  of 
the internal market. 

protection 

to 

Article  2(5) 

5. Any  lack  of conformity  resulting  from 
incorrect installation of the goods shall be 
considered  to  be  equivalent  to  lack  of 
the 
conformity  of 
contract,  if  the  goods  were  installed  by 
the seller or under his responsibility. 

the  goods  with 

5. Any  lack  of  conformity  resulting  from 
incorrect installation of the goods shall be 
considered  to  be  equivalent  to  lack  of 
conformity  of the goods with the contract, 
if the goods were installed by the seller or 
under  his  responsibility.  This  shall  apply 
equally  if  the  product,  intended  to  be 
installed  by  the  consumer,  is  installed  by 
him and the incorrect installation is due to 
a 
in  the  written 
lack  of  conformity 
installation instructions. 

Article  3(4) 

If the consumer  is  entitled  to  require 
4. 
neither  repair  nor  replacement,  or  if  the 
seller  has  not  completed 
the  remedy 
within  a reasonable time and without  any 
significant 
the 
inconvenience 
consumer,  the  consumer  may  require  an 
appropriate reduction of the price or have 
the contract rescinded. 

to 

If  the  consumer  is entitled  to  require 
4. 
neither  repair  nor  replacement,  or  if  the 
seller  has  not  completed 
the  remedy 
within  a  reasonable  time  or  without  any 
significant 
the 
inconvenience 
consumer,  the  consumer  may  require  an 
appropriate reduction  of the price or have 
the contract rescinded. 

to 

Article 4 
Right of redress 

Where  the  final  seller  is  liable  to  the 
consumer because of a lack of  conformity 
resulting  from  an  act  or  omission  by  the 
producer,  a  previous  seller  in  the  same 
chain  of 
any  other 
contracts  or 
intermediary,  the  final  seller  shall  be 
entitled  to  pursue  remedies  against  the 
person or persons liable in the contractual 
that 
chain  unless  he  has  renounced 

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 
other 
contracts  or 
intermediary,  the  final  seller  shall  be 
entitled  to  pursue  remedies  against  the 
person or persons liable in the contractual 
liable 
chain.  The  person  or  persons 

any 

(p 

entitlement.  The person  or persons  liable 
against  whom  the final  seller may pursue 
the  relevant 
remedies, 
actions  and  conditions  of  exercise,  shall 
be determined by national law. 

together  with 

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

together  with 

Article  9 

Consumer information 

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

Article  10 
Legislation 

The Annex to Directive 98/27/EC(1) of the 
European  Parliament  and  the  Council  on 
of 
injunctions 
the 
consumers' 
be 
interests 
supplemented  as follows: 

protection 
shall 

for 

"10.  Directive  99/.../EC  of  the  European 
Parliament  and  Council  of  ...  on  certain 
aspects of the sale of consumer goods and 
associated  guarantees  (OJ  No  L  ...  of  ... 
1999, p....)". 

WQJL  166 of 11.6.1998, p.51. 

% 

ISSN 0254-1475 

COM(99) 16 final 

DOCUMENTS 

EN 

06  10  01  02 

Catalogue  number  :  CB-CO-99-010-EN-C 

Office  for  Official  Publications of the European  Communities 

L-2985 Luxembourg