Communication from the Commission to the Council and the European Parliament on the implementation of 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 including analysis of the case for introducing direct producers’ liability.
Date: 2007-04-24
Institutions: European Commission
Subjects: consumer goods, consumer protection, contract, guarantee, national implementing measure, sale

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.4.2007 
COM(2007) 210 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT  

on the implementation of 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 including analysis of the case for introducing direct producers’ liability.  

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PREFACE 

Part  I  of  the  Communication  reports  on  the  implementation  of  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.  

Part II examines the case for introducing the direct liability of producers in the EU legislation.  

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TABLE OF CONTENTS 

PREFACE .................................................................................................................................. 2 

Part I – The Implementation Report........................................................................................... 4 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

Introduction .................................................................................................................. 4 

Scope of Application and Definitions – Article 1........................................................ 4 

Conformity with the Contract – Article 2 .................................................................... 5 

Rights of the Consumer – Article 3.............................................................................. 6 

Right of Redress – Article 4......................................................................................... 8 

Time limits – Article 5(1) ............................................................................................ 8 

Notification Obligation – Article 5(2).......................................................................... 8 

Burden of proof – Article 5(3) ..................................................................................... 9 

Consumer Guarantees – Article 6 ................................................................................ 9 

Mandatory nature of the provisions– Article 7 (1) and (2) ........................................ 10 

Second hand goods – Article 7 (1)............................................................................. 10 

Conclusions ................................................................................................................ 10 

Part II – Direct Producers’ liability .......................................................................................... 10 

13. 

14. 

15. 

Existing National Regulation ..................................................................................... 10 

The Possible Impact ................................................................................................... 11 

Conclusions ................................................................................................................ 12 

ANNEX I.................................................................................................................................. 13 

ANNEX II ................................................................................................................................ 16 

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PART I – THE IMPLEMENTATION REPORT 

1. 

INTRODUCTION 

All Member States have transposed 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 
guarantees1 (“the Directive”) into national law (see Annex I). In this document (the “Report”), 
the  Commission  reports  on  the  implementation  of  the  Directive  and  examines  the  case  for 
introducing the direct liability of producers, as provided by Article 12.  

The Report does not examine the transposition of the Directive into national law of Bulgaria 
and  Romania.  However,  transposition  measures,  communicated  by  those  Member  States  as 
provided by the Treaty of Accession2, are included in Annex I. 

The Report also examines the use made by Member States of the option to introduce a time 
limit within which a consumer who detects any defect has to inform the seller, as required by 
Article  5(2).  The  Commission  has  also  published  the  Green  Paper  on  the  Review  of  the 
Consumer  Acquis  ("the  Green  Paper")3.  There  the  Commission  presents  a  number  of  cross-
cutting  issues  for  public  consultation.  These  include  issues  relating  to  gaps  and  regulatory 
shortcomings  the  Commission  has  identified  during  the  review  of  the  consumer  acquis4, 
including those stemming from the Directive. The Commission calls on all interested parties 
to respond. 

In  considering  the  national  transpositions  of  the  Directive,  the  Commission  has  often  made 
use  of  translations.  Some  of  the  problems  identified  in  this  Report  may  emanate  from 
translations. 

2. 

SCOPE OF APPLICATION AND DEFINITIONS – ARTICLE 1 

The definition of “consumer” and “seller” are provided for not only in the Directive but also 
in  other  Community  acts  in  the  field  of  consumer  protection.  Problems  arising  from  these 
diverging definitions are considered in the Green Paper.  

The definition of “producer” at Article 1(2)(d) has not given rise to any particular problems. 
A majority of Member States have generally followed the wording of the Directive faithfully. 
However, the laws of the Czech Republic and Poland need to be clarified. Denmark, Greece 
and  Sweden  have  not  provided  the  Commission  with  a  transposition  of  the  definition.  In 
Latvia the definition is extended to cover persons who renovate goods for sale.  

The  scope  of  application  of  the  Directive  is  determined  by  the  definition  of  “consumer 
goods”  at  Article  1(2)(b).  This  same  Article  makes  exceptions  for  goods  sold  by  way  of 
execution or otherwise by authority of law, for water and gas where they are not put up for 
sale in limited volume or set of quantity, and for electricity. Member States have transposed 
this  definition  in  different  ways.  A  number  of  Member  States  have  followed  the  Directive 

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4 

OJ L 171 07.07.1999 p. 12. 
OJ L 157 21.06.2005 p 11 
COM(2006) 744 final. 
Annex II presents a list of the Directives under review 

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whereas others have made no use of the exception and apply the relevant laws to all movable 
goods. In addition, in Austria and Portugal the relevant law applies also to consumer sales of 
immovable property. Greece and Slovenia have not provided transpositions of the definition.  

Article  1(4)  extends  the  scope  of  application  of  the  Directive  to  contracts  for  the  supply  of 
consumer  goods  to  be  manufactured  or  produced.  This  provision  has  been  transposed 
correctly in a majority of the Member States. However, the transpositions of Greece and the 
Czech  Republic  do  not  correspond  to  Article  1(4)  and  need  to  be  clarified.  Hungary  and 
Lithuania have not transposed the extension. However the notion of consumer contract under 
their national laws can be interpreted as covering goods to be manufactured or produced. The 
Latvian and the Slovenian transposition apply to services which makes a direct transposition 
of this Article unnecessary. By setting up conditions in its legislation relating to goods to be 
manufactured, Estonia’s transposition of Article 1(4) seems narrower than the Directive.  

Under Article 1(3), Member States may provide that the definition of consumer goods does 
not  cover  “second-hand  goods  sold  at  public  auctions  where  the  consumer  has  the 
opportunity  to  attend  the  sale  in  person”.  Finland,  France,  Germany,  Hungary  and  the  UK 
have made use of this option. Spain has introduced a more limited exclusion, referring only to 
“administrative  auctions”.  Denmark,  Italy  and  Sweden  have  not  made  use  of  this  option 
instead they limit the seller’s liability for such goods sold at public auctions.  

The Czech Republic, Denmark, France, Greece, Hungary, Slovenia, Spain and Sweden have 
not provided the Commission with the transposition of the definition of a guarantee in Article 
1(2)(e). The definition in Finland, Latvia and Poland seems to be insufficient and needs to be 
clarified.  Germany  and  Portugal  have  extended  the  definition  to  other  guarantees  offered  to 
consumers. 

3. 

CONFORMITY WITH THE CONTRACT – ARTICLE 2 

Article 2 approximates national laws on the non-conformity of goods with the contract. The 
seller must deliver to the consumer goods which are in conformity with the contract (Article 
2(1)).  Article  2(2)  establishes  a  presumption  for  conformity  if  the  goods  meet  the 
requirements  enumerated  in  points  (a)  –  (d).  Transposition  checks  show  that  this  Article  in 
general has given rise to some problems. Certain discrepancies between the Directive and the 
transposing  legislation  have  been  noted.  Greece,  Latvia,  Malta,  the  Netherlands,  Portugal, 
Slovenia  and  the  UK  have  regulated  these  requirements  in  a  negative  way  (i.e.  goods  are 
presumed  not  to  be  in  conformity  unless  they meet  certain  standards);  other  Member  States 
have not formulated their national rules as presumptions (e.g. Austria). In both cases, national 
laws correctly reflect the Directive. The German law does not seem to regard the conformity 
criteria  as  cumulative  but  rather  as  ranked  in  priority  order  which  needs  to  be  clarified.  A 
clarification  is  needed  from  Slovakia,  which  seems  not  to  utilise  the  notion  of  goods  in 
conformity with a contract.  

The transposition of Article 2(2)(a)-(d) have not given rise to any serious problems. However, 
laws  of  some  Member  States  demand  further  clarifications.  Slovenia  has  introduced  a 
restriction  of  the  presumption  of  conformity  when  it  comes  to  the  point  (a)  on  samples  and 
models  and  the  Czech  Republic  does  not  directly  refer  to  samples  or  models.  Concerning 
point (2)(b), according to the laws of Italy, Latvia, Malta, Slovenia and Sweden the seller is 
bound by the particular purpose for which the goods should fit even if he did not expressly 

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accept this purpose. To the contrary, Germany, the Netherlands and Spain provide that a clear 
acceptance of the special purpose needs to be incorporated into the contract.  

When it comes to Article 2(2)(c) and (d), the laws of a handful of Member States are not clear 
enough  and  may  therefore  be  interpreted  in  a  way  which  is  not  always  consistent  with  the 
Directive. For example, the Dutch transposition does not explicitly provide that statements of 
the  producer  and  his  representatives  should  be  taken  into  account  when  assessing  the 
consumer’s reasonable expectations and in the case of Slovenia no reference to the producer’s 
representatives is made. Finally, some Member States have added additional requirements as 
to when a good is presumed to be in conformity with the contract, e.g. Cyprus, which requires 
the availability of spare parts, accessories and specialised technicians. 

Article  2.3  spells  out  the  circumstances  under  which  the  seller  may  be  exonerated  from 
liability  for  non-conformity  of  goods.  A  majority  of  the  Member  States  have  transposed  it 
properly.  Some  have  chosen  to  modify  this  provision  (e.g.  Austria  and  Greece)  in  a  way 
which is not less favourable to consumers. Sweden has not communicated a transposition of 
this Article. 

The point in time when a consumer must be aware of the lack of conformity in order for the 
seller  to  be  liable  differs  from  the  Directive  in  a  few  Member  States  to  the  detriment  of 
consumers. Neither the Austrian nor the Polish law mentions this moment at all, which may 
give rise to an interpretation unfavourable to the consumer. In  the case of Luxembourg, the 
consumer may not challenge defects that he was aware of or should have been aware of at the 
time of delivery. As a result the consumer may lose all rights in respect of apparent defects, 
which he should have discovered unless he immediately rejects the goods. 

Most  of  the  Member  States  have  faithfully  transposed  article  2(4)  on  the  exoneration  of 
seller’s  liability  for  public  statements.  A  number  of  them  (e.g.  the  Czech  Republic,  Greece 
and Slovenia) have made use of the minimum harmonisation clause and have transposed only 
some or none of the exoneration criteria. The Portuguese law demands further clarification as 
it enables the parties to the contract to limit the seller’s responsibility by a contractual clause.  

Article  2(5),  which  provides  that  incorrect  installation  and  shortcomings  in  the  installation 
instruction are equivalent to non-conformity, has not given rise to any particular interpretation 
problems  and  has  been  literally  transposed  by  most  of  the  Member  States.  Other  Member 
States (e.g. Denmark and the UK) have transposed this provision indirectly, which raises the 
question  whether  the  Directive  has  been  adequately  implemented.  Lithuania  and  Slovenia 
have not communicated their transposition measures to the Commission.  

4. 

RIGHTS OF THE CONSUMER – ARTICLE 3 

Article  3  provides  consumers  with  certain  rights  vis-à-vis  the  seller  in  the  case  of  non-
conformity of the goods (“legal guarantee”) by introducing a contractual liability of the seller 
towards the consumer for any lack of conformity which exists at the moment of delivery. The 
Directive neither provides a definition of delivery nor tackles the issue of the passing of the 
risk. All Member States have provided for such a liability. Some of the national laws however 
deviate from the Directive in respect of the point in time which is relevant for the assessment 
of non-conformity. For example, according to the Latvian law, goods shall be in conformity 
with the contract at the moment of the “sale” whereas the Hungarian law uses the notion of 
“time  of  performance”.  It  needs  to  be  clarified  whether  these  notions  correspond  to  the 

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Directive.  Under  the  Finnish  rules,  conformity  should  be  assessed  at  the  moment  of  the 
transfer of risk, which in some cases may happen before delivery (i.e. if the buyer delays the 
collection  or  delivery).  No  measures  transposing  this  provision  were  communicated  by 
Sweden. The issue of a possible EU definition of delivery is addressed in the Green Paper. 

In  general  terms,  Articles  3(2)  and  3(5)  have  not  given  rise  to  any  particular  problems;  a 
majority  of  the  Member  States  have  faithfully  transposed  the  remedies  envisaged  by  the 
Directive.  However,  certain  Member  States  have  made  use  of  the  minimum  harmonisation 
clause  and  have  introduced  variations  to  the  benefit  of  consumers.  In  Greece,  Lithuania, 
Portugal  and  Slovenia5  consumers  may  choose  freely  between  all  remedies.  In  some  other 
countries,  the  consumer’s  choice is  more  limited  but  still  broader  then  in  the  Directive  (see 
below). Finland has introduced additional rights for the consumer: to rectify non-conformity 
herself/himself and to withhold payment. The latter is also available under Swedish law. To 
the contrary, the Lithuania seems to envisage only two remedies in relation to food products. 

The Czech transposition seems not to provide the consumer with a right to a reduction of the 
price or termination of the contract if the seller has not repaired nor replaced goods without 
significant inconvenience to the consumer. In the case of Slovakia no direct rights are given to 
consumers in case the seller has not completed the remedy within a reasonable time.  

Article 3(3) applies a proportionality test to determine whether the seller is obliged to accept a 
particular remedy requested by the consumer. This has given rise to interpretation problems. It 
is  unclear  whether  this  proportionality  test  applies  only  to  the  choice  between  “repair”  and 
“replacement”  or  whether  it  also  may  include  other  remedies  (i.e.  reduction  of  price  and 
termination of contract). Some Member States have chosen to clarify the scope of the test or 
have  introduced  variations.  For  example,  the  German  transposition  applies  the  test  only  as 
between “repair” and “replacement”; the Irish and UK laws expressly state that all remedies 
could  be  taken  into  account.  Luxembourg  and  the  Czech  Republic  have  not  transposed  the 
specific elements of the proportionality test provided by the Directive. 

The  last  paragraph  of  Article  3(3),  which  provides  that  repair  or  replacement  should  be 
completed  within  a  reasonable  time  and  without  any  significant  inconvenience  to  the 
consumer, has been literally transposed by a majority of Member States. However, Slovenia 
has  provided  for  a  broader  protection,  setting  a  specific  time  limit  for  the  seller  to  comply 
with the request for any remedy (maximum eight days). The Polish and Lithuanian laws do 
not refer to the inconvenience of the consumer and need further clarifications. Germany has 
not communicated a measure transposing this provision.  

A remedy has to be provided free of charge, and the seller has to bear the costs of postage, 
labour  and  materials  (Article  3(4)).  This  requirement  and  the  accompanying  definition  of 
“free  of  charge”  were  transposed  properly  by  most  of  the  Member  States.  However,  some 
have  chosen  not  to  transpose  the  specific  definition  and  provide  only  for  a  general  duty  to 
provide remedies free of charge (e.g. the Czech Republic and Sweden). German law provides 
that,  where  consumer  goods  are  brought  into  conformity  with  the  contract  by  means  of  the 
delivery  of  replacement  goods,  the  seller  may  request  compensation  from  the  consumer  for 

5 

In Slovenia, the rescission is not available unless the seller has at least had a reasonable time to offer 
repair.  

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the use of the goods originally delivered which turned out to be faulty. This legislation seems 
to be incompatible with the Directive6. 

Under Article 3(6), the consumer is not entitled to have the contract rescinded if the lack of 
conformity is minor. A majority of the Member States have transposed this limitation. Only 
the  Czech  Republic,  Estonia,  Portugal  and  the  UK  have  made  use  of  the  minimum 
harmonisation clause and chosen to enable the consumer to rescind the contract even in minor 
cases.  

5. 

RIGHT OF REDRESS – ARTICLE 4 

Article  4  provides  that  a  final  seller,  who  is  held  liable  towards  a  consumer  for  a  lack  of 
conformity,  shall  be  entitled  to  pursue  remedies  against  previous  sellers  in  the  contractual 
chain or the producer. A number of Member States have transposed the provision faithfully; a 
majority of these refer to general contract law for exact conditions and requirements for such 
a claim (e.g. Austria and Portugal), whereas others have chosen to regulate this claim directly 
in  the  transposition  measure  (e.g.  Hungary  and  Italy).  However,  many  Member  States  have 
chosen to rely solely on general contractual principles and have not transposed this provision 
(e.g. Denmark and the UK). Both of these methods of transposition are sufficient as long as 
they do not limit the rights of the final seller as provided by the Directive. No transposition 
measure has been communicated by Slovenia. 

6. 

TIME LIMITS – ARTICLE 5(1) 

The seller is liable under Article 3 where the lack of conformity becomes apparent within two 
years  as  from  the  moment  of  delivery  (Article  5(1)).  A  majority  of  Member  States  have 
transposed  this  provision  literally.  Others  have  chosen  to  rely  on  the  time  limitation  that  is 
generally applicable in their contract law: Finland (3 years from delivery), Ireland and the UK 
(six years for both countries). The Netherlands has transposed a two years limitation period 
starting  from  the  notification  of  the  defect.  In  the  Czech  Republic  there  is  a  variation 
depending on the type of goods being sold (consumer goods – 2 years, foodstuff – 3 weeks, 
groceries– 8 days), which needs to be clarified. Portuguese law seems to go below the level of 
protection envisaged by the Directive by providing that an action needs to be brought within 6 
months from the moment the consumer notified the defect to the seller.  

As provided by recital 18, a number of Member States have introduced specific rules on the 
extension of the period during which the seller is liable while trying to cure the defect (e.g. 
Belgium, the Czech Republic). 

7. 

NOTIFICATION OBLIGATION – ARTICLE 5(2) 

The Directive allows the Member States to provide that, in order to benefit from his rights, the 
consumer must inform the seller of the lack of conformity within a certain period (no less than 
two months from the moment of discovery - Article 5(2)).  

6 

This issue is being considered by the ECJ in case C-404/06, (pending). 

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All  Member  States  have  notified  their  transposition  measures  in  this  respect.  Sixteen  have 
chosen  to  provide  for  a  notification  requirement.  Some  of  these  Member  States  waive  this 
obligation in certain circumstances (e.g. Denmark, Finland - when the seller acted contrary to 
the requirement of good faith or was grossly negligent; Italy – when the defect was known to 
the seller). Belgian law provides for a variation whereby the parties to the contract are able to 
specify the existence, the length of the notification period (but not less than 2 months) and the 
consequences of the lack of notification. The Slovak law provides that consumers are obliged 
to  notify  a  defect  “without  undue  delay”,  which  can  be  interpreted  to  be  shorter  than  two 
months. The following Member States have chosen not to make use  of this option: Austria, 
the Czech Republic, France, Germany, Greece, Ireland, Latvia, Luxembourg and the UK. 

8. 

BURDEN OF PROOF – ARTICLE 5(3) 

Any lack of conformity, which becomes apparent within six months of delivery is 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 5(3)). Most of the Member States 
have transposed this provision correctly. Some have used the minimum harmonisation clause 
and have introduced variations for the benefit of consumers. Portugal has extended the length 
of the rebuttable presumption from 6 months to 2 years; in Luxembourg, Poland and Slovenia 
the presumption apply in situations where it is incompatible with the nature of the goods or 
the  nature  of  the  lack  of  conformity.  No  transposition  measure  was  communicated  in  this 
respect by Lithuania.  

9. 

CONSUMER GUARANTEES – ARTICLE 6 

Above  the  standard  set  out  by  the  legal  guarantee,  the  seller  or  the  producer  may  offer 
consumers a commercial guarantee on a voluntary basis. Such a commercial guarantee shall 
fulfil the basic standards set by Article 6. It must be legally binding (Article 6(1)) and must 
provide consumers  with  certain  information (Article 6(2)). On request by the consumer, the 
guarantee  must  be  provided  in  writing  or  in  another  durable  medium.  The  consumer  may 
always  rely  on  a  commercial  guarantee  even  if  it  does  not  comply  with  the  rules  of  the 
Directive. 

These  provisions  have  generally  been  literally  transposed  or  in  a  very  similar  format  in  all 
Member States. Some of them have chosen to complement the rules of the Directive for the 
benefit  of  consumers.  For  example,  Malta  has  provided  further  substantive  rules  on 
commercial  guarantees  and  Estonia  has  provided  for  default  rules  on  the  content  of  the 
guarantee.  Hungary  and  Slovenia  continue  to  use  mandatory  guarantees  and  have  only 
partially transposed provisions on commercial guarantees. It is not clear whether these comply 
with  the  Directive.  The  transposition  in  the  Czech  Republic  seems  to  be  partial  and 
insufficient. No measures transposing Article 6 were communicated by Lithuania.  

Article 6(4) permits the Member States to require that guarantees are provided in a particular 
language. This option has been exercised by Cyprus, Denmark, Estonia, Greece, Hungary (for 
the mandatory guarantees), Italy, Luxembourg, Malta, Poland, Portugal, Slovenia, Spain and 
the  UK.  Belgium  relies  on  legislation  according  to  which  the  language  of  the  region  where 
goods are marketed must be used.  

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10. 

MANDATORY NATURE OF THE PROVISIONS– ARTICLE 7 (1) AND (2)  

According  to  Article  7(1)  any  contractual  term,  which  excludes  or  restricts  a  consumer’s 
rights before any lack of conformity is brought to the seller’s attention shall not be binding on 
the  consumer.  This  provision  has  been  faithfully  transposed  by  a  majority  of  the  Member 
States. No transposition measure has been communicated by Latvia.  

Moreover,  according  to  Article  7(2)  the  choice  of  the  law  of  a  non  Member  State  must  not 
deprive  consumers  from  the  protection  afforded  by  the  Directive.  This  provision  has  been 
transposed  in  most  of  the  Member  States.  Some  of  them  have  introduced  variations  of  the 
definition  of  “close  connection”  of  the  contract  with  the  territory  of  the  EU.  For  example 
France and Germany have  borrowed  factors from Article  5  of the Rome  Convention  on the 
law applicable to contractual obligations. The Dutch law refers to the consumer’s usual place 
of residence as the linking factor. No transposition measures have been communicated by the 
Czech Republic, Latvia and Slovenia.  

11. 

SECOND HAND GOODS – ARTICLE 7 (1)  

Article 7(1) second sentence allows the Member States to provide that, in case of second-hand 
goods, the seller and the consumer may agree on a shorter time period (but no less than one 
year) for the liability of the seller. This regulatory option has been used in Austria, Belgium, 
Cyprus  Republic,  the  Czech  Republic,  Germany,  Hungary,  Italy,  Luxembourg,  Poland, 
Portugal, Slovakia, Slovenia and Spain.  

12. 

CONCLUSIONS 

The transposition of the Directive in the Member States raises a number of problems. Many of 
these may be due to regulatory gaps in the Directive, but others can already at this stage be 
considered as incorrect transposition of the Directive. The transposition checks have revealed 
significant  divergences  between  national  laws  as  a  result  of  the  use  of  the  minimum  clause 
and the various regulatory options provided by the Directive. It is unclear at present to what 
extent  these  divergences  affect  the  proper  functioning  of  the  Internal  Market  and  consumer 
confidence. The outcome of the consultation in the Green Paper will provide information that 
will assist in determining whether there is a need for a revision of the Directive. 

PART II – DIRECT PRODUCERS’ LIABILITY 

13. 

EXISTING NATIONAL REGULATION 

The Directive allows the consumer to claim remedies for lack of conformity of goods against 
the  seller.  It  does  not  provide  for  the  direct  liability  of  producers.  However,  it  requires  the 
Commission  to  examine  the  case  for  introducing  direct  producers'  liability  ("DPL")  and,  if 
appropriate, submit a proposal. For the purpose of determining the legal situation in the EU, 
the  Commission  sent  a  questionnaire  to  Member  States  seeking  input  on  their  laws  in  this 
respect.  By  the  same  questionnaire  the  Commission  sought  Member  States  views  on  the 
impact  DPL  may  have  on  the  level  of  consumer  protection  and  on  the  internal  market.  A 
similar questionnaire was addressed to stakeholders. 

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Of  the  seventeen  Member  States,  which  have  responded  to  the  questionnaire,  Belgium, 
Finland,  Latvia,  Portugal,  Spain  and  Sweden  have  introduced  various  forms  of  DPL7.  The 
conditions  for  making  direct  claims  against  producers  vary  considerably.  In  Finland  and 
Sweden  the  consumer  can  turn  to  anyone  in  the  distribution  chain,  in  Latvia  and  Spain  the 
consumer may submit claim only to the producer, importer; in Portugal it is the producer and 
his representatives that may be approached. In Finland, Latvia and Sweden the consumer can 
claim  any  of  the  remedies  available  under  the  Directive.  In  Portugal  and  Spain  the  only 
possible  remedies  are  repair  and  replacement.  Moreover,  in  Finland  and  France,  the 
consumer’s claims need to be based on the contract concluded between the producer and his 
contractual counterpart in the distribution chain. In Spain, the consumer can claim remedies 
directly against the manufacturer or the importer whenever it is impossible or disproportionate 
to  claim  remedies  from  the  seller,  e.g.  where  the  seller  has  gone  bankrupt  or  persistently 
refuses  to  deal  with  the  problem.  Similarly  in  Sweden  the  consumer  can  invoke  direct 
producers’ liability only when the seller has gone bankrupt, ceased his/her business or cannot 
be traced.  

Some of the Member States, which have not provided for DPL, are contemplating introducing 
it (e.g. Hungary) or have provided rules, which have similar effect (e.g. Slovenia). 

14. 

THE POSSIBLE IMPACT  

Stakeholders and Member States have diverging opinions as to the impact of DPL on the level 
of  consumer  protection  and  the  internal  market.  A  majority  of  the  Member  States  and  a 
number  of  stakeholders  consider  that  the  DPL  actually  or  potentially  increases  consumer 
protection. In their opinion, the DPL provides redress for the consumer in case the seller is not 
able (or willing) to resolve consumer complaints. It constitutes an important “safety net” for 
consumers.  Some  Member  States  consider  the  producer  to  be  often  better  placed  than  the 
seller to bring goods into conformity with the contract. To the contrary, a minority of Member 
States and stakeholders consider that direct producers’ liability would not increase consumer 
protection  but  rather  cause  uncertainty  as  to  the  applicable  law  and  delay  the  resolution  of 
consumer complaints.  

Member  States  and  stakeholders  are  divided  on  the  possible  impact  of  DPL  on  consumer 
attitudes  toward  cross-border  shopping.  A  number  of  respondents  consider  that  DPL  would 
encourage consumers to shop cross-border as it would make it easier for them to turn to the 
producer’s  domestic  representative  compared  with  a  seller  in  another  country.  It  would  be 
easier for consumers to determine the producer of a good rather than the seller as usually it is 
the producer who is indicated on the label. To the contrary, other respondents underline that 
DPL  will  not  influence  consumers’  attitudes  to  the  internal  market  as  they  are  influenced 
predominantly by economic factors. Furthermore, some argue that introduction of DPL may 
affect the  balance  between  different members of the distribution chain and induce sellers to 
shift  the  blame  for  defects  on  the  producer  (or  somebody  else  in  the  chain).  Moreover,  it 
would go against the principle of privity of contracts. 

An  important  number  of  stakeholders  and  a  number  of  Member  States  consider  that  DPL 
would  cause  a  significant  burden  for  businesses  since  producers  would  need  to  develop 
systems  for  handling  complaints  and  make  financial  provision  for  exposure  to  this  liability. 

7 

Arguably, France provides for the DPL although has not responded to the questionnaire.  

EN 

11 

   EN 

 
                                                 
However, Member States, which have already introduced DPL and a minority of stakeholders 
do not share these opinions  and  point  out  that the Directive already provides for producer’s 
liability under Article 4. Moreover, in their view, cases where DPL is applied in practice are 
so rare that they do not constitute a real burden for businesses.  

15. 

CONCLUSIONS 

The existence of diverging regimes of direct producers’ liability is a potential problem for the 
internal  market.  However,  the  Commission  is  unable,  at  the  present  stage,  to  draw  final 
conclusions. There is not enough evidence to determine whether the lack of EU rules on direct 
producers’ liability has a negative effect on consumer confidence in the internal market. For 
these  reasons,  the  Commission  has  decided  not  to  submit  any  proposal  and  to  explore  the 
issue further in the context of the Green Paper.  

EN 

12 

   EN 

 
ANNEX I 

Table of national implementation measures of Member States 

Member State 

Implementing measures known to the Commission on 1.10.2006  Date 

law  came 

Österreich 

Allgemeines  Bürgerliches  Gesetzbuch  (ABGB),  konsolidiert 
durch  das  “Gewährleistungsrecht-Änderungsgesetz”  BGBl.  Nr. 
48/2001, Teil I, 08/05/2001, p. 1019 

Konsumentenschutzgesetz (KSchG), BGBl 1979/140 

into force 

1.01.2002 

Belgique 

Loi relative à la protection des consommateurs en cas de vente de 
biens  de consommation, référence de publication du 21/09/2004, 
page:  68384-68388,  num.:  Moniteur  Belge  Entrée  en  vigueur  : 
01/01/2005  

1.05.2005 

България  

Закон  за  защита  на  потребителите,  публикуван  в  Държавен 
вестник бр. 99 от 9.12.2005 г.  

10.06.2006 

Κypros 

Ο  περί  Ορισµένων  Πτυχών  της  Πώλησης  Καταναλωτικών 
Αγαθών  και  των  Συναφών  Εγγυήσεων  Νόµος  του  2000.  (  Ν. 
7(Ι)/2000) 

28.01.2000 

Česká 
republika  

Zákon  č.  40/1964  Sb.,  občanský  zákoník  ve  znění  zákona  č. 
367/2000 Sb., Coll.Laws (CZ) 200 No 99 

1.01.2001 

Zákon  č.  22/1997  Sb.  o  technických  požadavcích  na  výrobky  ve 
znění zákona č. 226/2003 Sb. 

Zákon o obecné bezpečnosti výrobků č. 102/2001 Sb. 

Danmark 

Lovbekendtgørelse nr. 237/2003 om køb 

Eesti  

Tarbijakaitseseadus, Riigi Teataja 1994, No.12, p. 13 

Suomi 

France 

Võlaõigusseadus, Riigi Teataja 2002, No. 53, p. 336 

Kuluttajansuojalaki 20.1.1978/38  

Code de Consommation, Loi n° 89-421 du 23 juin 1989 relative à 
l’information  et  à  la  protection  des  consommateurs  ainsi  qu’à 
diverses pratiques commerciales  

Ordonnance n. 2005-136 du 17 février 2005 relative à la garantie 
de  la  conformité  du  bien  au  contrat  due  par  le  vendeur  au 
consommateur. 

28.03.2003 

15.04.2004 

No information 

18.02.2005 

EN 

13 

   EN 

 
Deutschland 

Bürgerliches Gesetzbuch (BGB), BGBl. I 2002, 42 

1.01.2002 

Einführungsgesetz  zum  Bürgerlichen  Gesetzbuch,  BGBl.  I  1994, 
2494 

Produkthaftungsgesetz (ProdHaftG), BGBl. I 1989, 2198 

Zivilprozessordnung (ZPO) BGBl. I 1950, 533 

Ellás  

Nomos 
191/16.11.1994 

2251/94  Prostasia 

ton 

katanaloton,  FEK  A’ 

21.08.2001 

ΑΣΤΙΚΟΣ ΚΩ∆ΙΚΑΣ, A –151/1946 

Magyarország 

1959. évi IV. törvény a Polgári Törvénykönyvről 

1.07.2003 

151/2003.  (IX.  22.)  Korm.  Rendelet  az  egyes  tartós  fogyasztási 
cikkekre  vonatkozó  kötelező 
jótállásról,  Magyar  Közlöny 
2003/109 (X.22.) 

1997.  évi  CLV  tv.  a  fogyasztóvédelemről,  Magyar  Közlöny 
1997/119. (XII.23.) 

European Communities (Certain Aspects of the Sale of Consumer 
Goods  and  Associated  Guarantees)  Regulation  2003,  S.I.  no.  11 
of 2003 

22.01.2003 

Decreto  Legislativo  6  settembre  2005,  n.  206  "Codice  del 
consumo,  a  norma  dell'articolo  7  della  legge  29  luglio  2003,  n. 
229  ex  Decreto  Legislativo  2  febbraio  2002,  n.  24  "Attuazione 
della  direttiva  1999/44/CE  su  taluni  aspetti  della  vendita  e  delle 
garanzie di consumo" 

23.10.2005 

Patērētāju  tiesību  aizsardzības  likums,  Latvijas  Vēstnesis  1999 
No. 104/105 

No information 

Lietuvos Respublikos Civilinis Kodeksas, Valstybės Zinios 2000, 
6d, Nr. 74 

30.04.2004 

Lietuvos  Respublikos  Vartotojų  Teisių  Gynimo  Įstatymas, 
Valstybės Zinios 2004 72-2496 

Ireland 

Italia 

Latvija  

Lietuva 

Luxembourg 

Loi du 21 avril 2004 relative à la garantie de conformité due par 
le vendeur de biens meubles corporels, Mémorial 2004 No. 60 

1.01.2005 

Loi  du  25  août  1983  relative  à  la  protection  juridique  du 
consommateur, Mémorial 1983, p. 1494 

Malta  

Att  dwar  l-Affarijiet  tal-Konsumatur  Kapitlu  378  tal-Ligijiet  ta’ 
Malta, L.M. 2002, 378 

15.10.2002 

EN 

14 

   EN 

 
 
 
Nederland 

Burgerlijk Wetboek, Boek 7, Titel, Stb (NL) 2004, no. 553 

1.05.2003 

Polska 

Portugal 

Ustawa z 27 lipca 2002 r. o szczegółowych warunkach sprzedaży 
konsumenckiej oraz o zmianie Kodeksu cywilnego 

1.01.2003 

Decreto-Lei  n.º  67/2003,  de  8  de  Abril,  Diário  da  República,  I 
Série-A, n.º 83, 2003.04.08, pp. 2280 et ss. 

9.04.2003 

Código  Civil  (aprovado  pelo  Decreto-Lei  n.º  47  344,  de  25  de 
Novembro de 1966) 

Romania 

Lege  privind  vânzarea  produselor  şi  garanţiile  asociate  acestora 
no. 449/2003 (O.J. 812/18.11.2003) 

1.01.2007 

Slovenska 
republika  

Zákon č. 40/1964 Zb. Občiansky zákonník v znení neskorších 
predpisov 

No information 

Zákon č. 634/1992 Zb. o ochrane spotrebiteľa v znení neskorších 
predpisov 

Zákon č. 97/1963 Zb. o medzinárodnom práve súkromnom a 
procesnom v znení neskorších predpisov 

Slovenija 

España  

Sverige 

United 
Kingdom 

Zakon  o  varstvu  potrošnikov  (ZVPot  ),  UL  RS  (Uradni  list  RS) 
20/1998  (25/1998  –  popr.),  UL  RS  (Uradni  list  RS)  23/1999, 
110/2002, 51/2004 

No information 

Ley  23/2003,  de  garantías  en  la  venta  de  bienes  de  consumo, 
BOE, No. 165, 11.07.2003, p. 27160 et seqq 

11.09.2003  

Konsumentköplag (1990:932) ändrad genom SFS 2002:587, SFS 
Lag 1990 No. 932 

1.07.2002 

Sale of Goods Act 1979 

31.03.2003 

Supply of Goods (Implied Terms) Act 1973 

Supply of Goods and Services Act 1982 

The Sale and Supply of Goods to Consumers Regulations 2002 

EN 

15 

   EN 

 
 
ANNEX II 

Consumer Directives under Review 

Council  Directive  85/577/EEC  of  20  December  1985  to  protect  the  consumer  in  respect  of 
contracts negotiated away from business premises, OJ L 372, 31.12.1985, p. 31. 

Council  Directive  90/314/EEC  of  13  June  1990  on  package  travel,  package  holidays  and 
package tours, OJ L 158, 23.6.1990, p. 59. 

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95, 
21.4.1993, p. 29. 

Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the 
protection of purchasers in respect of certain aspects of contracts relating to the purchase of a 
right to use immovable properties on a timeshare basis, OJ L 280, 29.10.1994, p. 83. 

Directive  97/7/EC  of  the  European  Parliament  and  of  the  Council  of  20  May  1997  on  the 
protection of consumers in respect of distance contracts, OJ L 144, 4.6.1997, p. 19. 

Directive  98/6/EC  of  the  European  Parliament  and  of  the  Council  of  16  February  1998  on 
consumer protection in the indication of the prices of products offered to consumers, OJ L 80, 
18.3.1998, p. 27. 

Directive  98/27/EC  of  the  European  Parliament  and  of  the  Council  of  19  May  1998  on 
injunctions for the protection of consumers' interests, OJ L 166, 11.6.1998, p. 51. 

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. 

EN 

16 

   EN