WRITTEN QUESTION E-4085/03 by Marianne Thyssen (PPE-DE) to the Commission. Practical problems in application of Directive 1999/44/EC.
Date: 2004-01-14
Institutions: European Parliament, Provisional data
Subjects: application of EU law, approximation of laws, consumer goods, consumer protection, contract, perishable goods, producer's liability, sale

3.4.2004

EN

Official Journal of the European Union

C 84 E/145

(2004/C 84 E/0183)

WRITTEN QUESTION E-4075/03

by Alexandros Alavanos (GUE/NGL) to the Commission

(14 January 2004)

Subject: Contracts of doctors working for the Greek Electricity Board (DEI)

The Commission recently received a complaint from doctors working for the Greek Electricity Board (DEI)
about the terms they are obliged to accept in order to work for this organisation. These doctors who are
specialists in various fields worked for many years with ‘contracts for the provision of independent
services’; after court rulings these have now been converted into ‘contracts for part-time dependent
employment for an unlimited duration’. However, according to the conditions of the new contract
provided by the DEI, they are not covered by the same DEI arrangements as regular and other staff and are
excluded from pay increases due to promotions and from allowances, Christmas bonuses and other
benefits provided for in Collective Employment Conditions or by law.

Will the Commission say whether the above terms communicated to the doctors by the DEI in respect of
their new employment contract violate the provisions of Directive 97/81 (1) and in particular the principle
of non-discrimination which is defined in Clause 4 and which provides that: ‘In respect of employment
conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time
workers’?

(1) OJ L 14, 20.1.1998, p. 9.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(24 February 2004)

The written question deals with the issue of whether the Directive on part-time work (1) is breached by the
granting of special contracts without certain additional benefits which are normally given to employees.

Greece has correctly transposed the part-time work Directive by Article 2 of Act No 2369 of 1 September
1998. The Greek legislation applies to the whole private sector and employment relations with public
enterprises and other public sector bodies.

The Commission has not
discrimination principle of the part-time work Directive in Greece.

received any similar

representations as

regards violation of

the non-

Any alleged breach of the afore-mentioned Greek legislation should in the first instance be addressed to the
competent Greek authorities and, in fact, the Commission is aware that the case in question has been
brought before the Greek courts.

(1) Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work

concluded by UNICE, OJ L 14, 20.1.1998.

(2004/C 84 E/0184)

WRITTEN QUESTION E-4085/03

by Marianne Thyssen (PPE-DE) to the Commission

(14 January 2004)

Subject: Practical problems in application of Directive 1999/44/EC

Directive 1999/44/EC (1) of 25 May 1999 on certain aspects of the sale of consumer goods and associated
guarantees aims to harmonise Member States’ rules on certain aspects of the sale of consumer goods and

C 84 E/146

Official Journal of the European Union

EN

3.4.2004

associated guarantees. Under the Directive, the seller of a product is liable for any lack of conformity in
goods that becomes apparent within two years of delivery. The purchaser may invoke certain guarantees,
such as repair or replacement of the goods free of charge, an appropriate price reduction or rescission of
the contract. According to Article 5(3), if any lack of conformity becomes apparent within six months of
delivery, then there is a rebuttable presumption that this 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.

The new rules on guarantees apply to all tangible movable items, which implies that, in theory, they apply
equally to flowers, plants and food products, goods that inherently have a limited life span. If a purchaser
returns such a product to the seller within six months of purchase (because, for example, the product is
not, or is no longer, fresh), the seller must provide proof that the product had in fact been fresh at the
time of delivery in order to be exempted from the Directive’s obligations on guarantees. Such proof is
virtually impossible to provide.

Is the Commission aware of the problems that the application of the Directive may cause in the case of
flowers, plants and food products, and has it already received complaints on the subject? Can the
Commission state how Member States that have already transposed the Directive into their own national
law have dealt with this problem, and whether these products would be covered by the exemption set out
in Article 5(3) of the Directive? Does not the Commission feel that, because of the legal uncertainty that
this causes, there should be an exemption or a limit on the rules on guarantees regarding such products?
If it does, when does the Commission intend to submit appropriate proposals?

(1) OJ L 171, 7.7.1999, p. 12.

Answer given by Mr Byrne on behalf of the Commission

(26 February 2004)

Directive 1999/44/EC of the Parliament and of the Council of 25 May 1999 on certain aspects of the sale
of consumer goods and associated guarantees covers ‘consumer goods’ as defined in Article 1(2)(b). Broadly
speaking, these include any tangible movable items. However, some tangible movable items which are not
relevant for the present case are excluded from the scope of the Directive. In this sense, the Honourable
Member is correct in asserting that tangible movable items with a limited life span such as flowers, plants
and food products are covered by the Directive.

The Honourable Member is further correct in stating that according to Article 5(3) 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 proven otherwise. This rebuttable presumption in effect amounts to a shift of
the burden of proof in favour of the consumer. This shift is one of the important benefits of the Directive
for European consumers. The justification for this shift in burden of proof is that it is much easier for the
seller in terms of his knowledge of the goods and of access to information relating to the goods to prove
that they were in conformity with the contract. Consumers on the other hand will not always have the
necessary expertise or access to the relevant information to prove their claim. However, there is an
exemption to the application of this presumption where such a presumption is incompatible with the
nature of the goods. This exemption was introduced in order to cover perishable goods such as those
mentioned by the Honourable Member. This issue was discussed in the Parliament and the Council during
the co-decision procedure. Therefore, the Commission does not consider that there is any legal uncertainty
in the case of flowers, plants and food products and has not received any complaints in respect of such
goods.

It is currently not possible for the Commission to give a complete picture of the Member States’
transpositions because Belgium, France and Luxembourg have still failed to notify transposition measures.
A full review of the application of the Directive is due only in 2006.