Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees
Date: 1999-05-25
Institutions: Council of the European Union, European Parliament
Subjects: consumer goods, consumer protection, guarantee, sale

L 171/12

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Official Journal of the European Communities

7. 7. 1999

DIRECTIVE 1999/44/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on certain aspects of the sale of consumer goods and associated guarantees

of 25 May 1999

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

consumer confidence and enable consumers to make the
most of the internal market;

Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,

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

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

Acting in accordance with the procedure laid down in Article
251 of the Treaty in the light of the joint text approved by the
Conciliation Committee on 18 May 1999 (3),

(1) Whereas Article 153(1) and (3) of the Treaty provides
that the Community should contribute to the achieve-
ment of a high level of consumer protection by the
measures it adopts pursuant to Article 95 thereof;

(2) Whereas the internal market comprises an 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 transactions by
persons acting in the course of a business but also
transactions by 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 uniform minimum set of
fair rules governing the sale of consumer goods;

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

(4) 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 compart-
mentalisation of markets should be prevented; whereas
the opportunities available to consumers have been
greatly broadened by new communication technologies
which allow ready access to distribution systems in
other Member States or in third countries; whereas, in
the absence of minimum harmonisation of the rules
governing the sale of consumer goods, the development
the sale of goods through the medium of new
of
distance
being
impeded;

communication

technologies

risks

(5) Whereas the creation of a common set of minimum
rules of consumer law, valid no matter where goods are
strengthen
purchased within the Community, will

(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
(OJ C 333, 30.10.1998, p. 46) and Decision of the European Parlia-
ment of 17 December 1998. (OJ C 98, 9.4.1999, p. 226). Decision
of the European Parliament of 5 May 1999. Council Decision of 17
May 1999.

(6) 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 princi-
ples of national
law relating to contractual and non-
contractual

liability;

legal

(7) Whereas the goods must, above all, conform with the
the principle of
specifications; whereas
contractual
conformity with the contract may be considered as
common to the different national
traditions;
whereas in certain national 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
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;

traditions,

(8) 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; 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 deter-
mine the lack of conformity of the goods with the
contract; whereas the quality and performance which
consumers can reasonably expect will depend inter alia
on whether the goods are new or second-hand; whereas
the elements mentioned in the presumption are cumula-
tive; whereas, if the circumstances of the case render any
particular
the
remaining elements of the presumption nevertheless still
apply;

element manifestly

inappropriate,

(9) Whereas the seller should be directly liable to the
consumer for the conformity of the goods with the
contract; whereas
solution
is
enshrined in the legal orders of the Member States;
whereas nevertheless
should be free, as
the seller
provided for by national law, to pursue remedies against
the producer, a previous seller in the same chain of

traditional

this

the

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contracts or any other intermediary, unless he has
renounced that entitlement; whereas this Directive does
not affect the principle of freedom of contract between
the seller, the producer, a previous seller or any other
intermediary; whereas the rules governing against whom
and how the seller may pursue such remedies are to be
law;
determined by national

(10) 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;

(11) 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 deter-
mined objectively; whereas a remedy would be dispro-
portionate if it imposed, in comparison with the other
remedy, unreasonable costs; whereas, in order to deter-
mine whether the costs are unreasonable, the costs of
one remedy should be significantly higher than the costs
of the other remedy;

(12) 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;

(13) Whereas, in order to enable consumers to take advan-
tage of the internal market and to buy consumer goods
in another Member State,
it should be recommended
that,
in the interests of consumers, the producers of
consumer goods that are marketed in several Member
States attach to the product a list with at least one
contact address
in every Member State where the
product is marketed;

(14) 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;

(15) Whereas Member States may provide that any reim-
bursement 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
is
arrangements whereby rescission of
effected may be laid down in national

the contract

law;

(16) Whereas

the specific nature of

second-hand goods
makes it generally impossible to replace them; whereas
therefore the consumer's right of replacement is gener-
ally not available for these goods; whereas for such
goods, Member States may enable the parties to agree a
shortened period of liability;

(17) Whereas it is appropriate to limit in time the period
during which the seller
liable for any lack of
is
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;

(18) Whereas Member States may provide for suspension or
interruption of the period during which any lack of
conformity must become apparent and of the limitation
period, where applicable and in accordance with their
national
in the event of repair, replacement or
negotiations between seller and consumer with a view to
an amicable settlement;

law,

(19) 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
the
level of protection for
may ensure a higher
introducing such an obligation;
consumer by not
whereas
the
case
Community should have at least two months in which
to inform the seller that a lack of conformity exists;

throughout

consumers

in any

(20) 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
consumer organisations throughout
the Community;
whereas a summary of the situation in all Member States
should therefore be published in the Official Journal of the
European Communities;

(21) 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 stimu-
late 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;

(22) Whereas the parties may not, by common consent,
restrict or waive the rights granted to consumers, since
otherwise
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

the

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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;

(23) 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 the experience
acquired in implementing this Directive, it may be neces-
sary to envisage more far-reaching harmonisation,
notably by providing for the producer's direct liability
for defects for which he is responsible;

(24) Whereas Member States should be allowed to adopt or
maintain in force more stringent provisions in the field
covered by this Directive to ensure an even higher level
of consumer protection;

(25) Whereas, according to the Commission recommenda-
tion of 30 March 1998 on the principles applicable to
the bodies responsible for out-of-court settlement of
consumer disputes (1), Member States can create bodies
efficient handling of
and
that
complaints in a national and cross-border context and
which consumers can use as mediators;

impartial

ensure

— electricity;

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

(d) 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;

(e) 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
the
consumer goods in any way if
specifications set out in the guarantee statement or in the
relevant advertising;

they do not meet

(f) repair: shall mean,

in the event of

lack of conformity,
into conformity with the

bringing consumer goods
contract of sale.

States may provide

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

that

the

(26) Whereas it is appropriate, in order to protect the collec-
tive interests of consumers, to add this Directive to the
list of Directives contained in the Annex to Directive
98/27/EC of the European Parliament and of the Council
of 19 May 1998 on injunctions for the protection of
consumers'

interests (2),

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.

2.

For the purposes of this Directive:

(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,

(1) OJ L 115, 17.4.1998, p. 31.
(2) OJ L 166, 11.6.1998, p. 51.

4.
Contracts for the supply of consumer goods to be manu-
factured or produced shall also be deemed contracts of sale for
the purpose of this Directive.

Article 2

Conformity with the contract

The seller must deliver goods to the consumer which are

1.
in conformity with the contract of sale.

Consumer goods are presumed to be in conformity with

2.
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 and which the seller
has accepted;

(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 charac-
teristics 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 lack of conformity for
3.
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 has
supplied by the
consumer.

the lack of conformity, or if
its origin in materials

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The seller shall not be bound by public statements, as

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

— if the seller has not completed the remedy within a reason-

able time, or

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

— if the seller has not completed the remedy without signifi-

been, aware of the statement in question,

cant inconvenience to the consumer.

— 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 installa-
tion of the consumer goods shall be deemed to be equivalent
to lack of conformity of the goods if installation forms part of
the contract of sale of the goods and 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 the consumer and the incorrect installation is due
to a shortcoming in the installation instructions.

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.

2.
In the case of a lack of conformity, the consumer 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 with regard to those goods, in accordance
with paragraphs 5 and 6.

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 dispro-
portionate.

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

— 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.

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

The terms ‘free of charge’ in paragraphs 2 and 3 refer to
4.
the necessary costs
into
conformity, particularly the cost of postage, labour and mate-
rials.

incurred to bring the goods

The consumer may require an appropriate reduction of

5.
the price or have the contract rescinded:

— if the consumer is entitled to neither repair nor replace-

ment, or

The consumer

6.
rescinded if the lack of conformity is minor.

is not entitled to have the contract

Article 4

Right of redress

Where the final seller is liable to the consumer because of a
lack of conformity resulting from an act or omission by the
producer, a previous seller in the same chain of contracts or
any other intermediary, the final seller shall be entitled to
pursue remedies against the person or persons liable in the
contractual chain. the person or persons liable against whom
the final seller may pursue remedies, together with the relevant
actions and conditions of exercise, shall be determined by
national

law.

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 7 January 2003, the Commission shall prepare a
report on the use made by Member States of this paragraph.
This report shall be published in the Official
the
European Communities.

Journal of

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

1.
A guarantee shall be legally binding on the offerer under
the conditions laid down in the guarantee statement and the
associated advertising.

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The guarantee shall:

2.
— 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 for making
claims under the guarantee, notably the duration and terri-
torial scope of the guarantee as well as the name and
address of the guarantor.

3.
On request by 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 para-
graphs 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

Any contractual terms or agreements concluded with the
1.
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.

Member States may provide that, in the case of 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.

take the necessary measures to
2. Member States shall
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

Article 9

Member States shall take appropriate measures to inform the
consumer of the national law transposing this Directive and
shall encourage, where appropriate, professional organisations
to inform consumers of their rights.

Article 10

The Annex to Directive 98/27/EC shall be completed as
follows:

‘10. Directive 1999/44/EC of the European Parliament and
of the Council of 25 May 1999 on certain aspects of
the sale of consumer goods and associated guarantees
(OJ L 171, 7.7.1999, p. 12).’.

Article 11

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive not later than 1 January 2002. 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 States shall communicate to the Commission the
provisions of national
in the field
covered by this Directive.

law which they adopt

Article 12

Review

The Commission shall, not later than 7 July 2006, review the
application of this Directive and submit to the European Parlia-
ment and the Council a report. The report shall examine, inter
alia, the case for introducing the producer's direct liability and,
if appropriate, shall be accompanied by proposals.

Article 13

Entry into force

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

National law and minimum protection

Article 14

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

liability.

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.

This Directive is addressed to the Member States.

Done at Brussels, 25 May 1999.

For the European Parliament

For the Council

The President

J. M. GIL-ROBLES

The President

H. EICHEL