Opinion of the European Economic and Social Committee on the 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 COM(2007) 210 final
Date: 2008-02-13
Institutions: European Economic and Social Committee
Subjects: consumer goods, consumer protection, contract, guarantee, national implementing measure, producer's liability, sale

25.6.2008

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Official Journal of the European Union

C 162/31

Opinion of the European Economic and Social Committee on the 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

COM(2007) 210 final

(2008/C 162/04)

On 24 April 2007 the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the

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

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 31 January 2008. The rapporteur was Mr Cassidy.

At its 442nd plenary session, held on 13 and 14 February 2008 (meeting of 13 February), the European
Economic and Social Committee adopted the following opinion by 145 votes to three with six abstentions.

1. Conclusions and Recommendations

and retailers' guarantees, for example, the conformity require-
ments under Article 2 of the Directive.

The Commission's transposition checks have shown up
1.1
significant divergences between national
laws transposing the
Directive 1999/44/EC. Some of these may be due to regulatory
gaps in the Directive, others can already be considered as incor-
rect transposition of the Directive. It is unclear at present to
what extent those divergences affect the proper functioning of
the Internal Market and consumer confidence. The EESC recom-
mends that the Commission study the implications for both the
Internal Market and consumer confidence as a matter of
urgency (1).

As a consequence of

1.2
the above, the EESC urges the
Commission to take enforcement action against those Member
the Directive
States who have, as yet,
1999/44/EC correctly.

failed to implement

The Green Paper on the Consumer Acquis

1.3
reveals a
number of cross-cutting issues. The Commission has identified
during its review some problems relating to the implementation
of the Consumer Sales Directive, especially in so far as the issue
of Direct Producers' Liability (DPL) is concerned.

The EESC believes that the Consumer Sales Directive is
1.4
also defective in dealing with the regulation of manufacturers'

(1) The University of Bielefeld (Germany) has developed a comparative
analysis of the different national regulations, including possible barriers
to trade or distortions of competition resulting from the eight directives
listed under footnote 3 (this comparative study is available under http://
ec.europa.eu/consumers/cons_int/safe_shop/acquis/comp_analysis_en.
pdf).

the Consumer Acquis (2)

1.5
There is no overwhelming evidence for amending Direc-
tive 1999/44/EC in isolation to introduce DPL. The Green Paper
on the Review of
initiated public
consultation on this and other issues, which were identified by
the European Commission during the review of
the EU
consumer protection legislation (i.e. the eight Consumer Direc-
tives (3)). The EESC recommends therefore that the Commission
considers the desirability of introduction of DPL in a possible

(2) COM(2006) 744 final (‘the Green Paper’).
(3) 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.

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legislative follow-up to the Green Paper (e.g.
‘horizontal’ direc-
tive) favoured by bodies such as UGAL (4) and BEUC. However,
the EESC emphasises that the results of this initiative should not
put an undue burden on the business sector as requested by
Eurocommerce.

Before the Commission introduces a horizontal directive,

1.6
the EESC believes that an Impact Assessment is needed.

1.6.1.
This is the case of the scope of the Directive. The
EESC agrees that the Directive shall apply to additional types of
contracts under which goods are supplied to consumers (e.g. car
rental) and to contracts under which digital content services are
provided to consumers (e.g. on line music). This is also the case
of the second-hand goods sold at public auctions where the
consumer attends the sale in person. Other aspects such as the
definition of delivery, the passing of risk, the notion and exten-
sion of time limits of conformity of goods, the coverage of
recurring defects, the regime of the burden of proof and even
certain remedies should be considered as part of an horizontal
instrument in the framework of a mixed approach to the revi-
sion of the Consumer Acquis, and the discussion of the details
on these topics should take place when a proposal on such an
instrument will be disclosed for consultation and public discus-
sion.

1.7
Stakeholders and Member States have diverging opinions
as to the impacts 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 DPL potentially increases
consumer protection. Some consider that the producer is better
placed than the seller to bring goods into conformity with the
contract. Others believe that DPL would not increase consumer
protection but rather cause legal uncertainty and significant
burdens for businesses. The EESC believes that more informa-
tion is necessary on these points (5).

2.2.1
Annex 1 of the Green Paper also poses a number of
questions on specific rules applicable to Consumer Sales. This
opinion is intended to give guidance to the Commission in
‘on
response to its Communication COM(2007) 210 final
certain aspects of the sale of consumer goods and associated
guarantees including analysis of the case for introducing direct
producers'
liability’. The EESC delivered its opinion on the
Green Paper (6) at its Plenary of 11 and 12 July 2007 and
decided at that time not to give any opinion on the specific
matters, namely on the questions raised by the Commission
about the consumer sales directive, which will be covered in the
Commission proposal for a framework directive on consumer
contractual rights.

2.2.2
In its Green Paper the Commission presents a number
of cross-cutting issues for public consultation. These include
issues
the
Commission has identified during the review of the consumer
acquis, including those stemming from the Directive 1999/44.

relating to gaps and regulatory shortcomings

All Member States have transposed the Directive (7). The
2.3
purpose of the Communication is to examine how Member
States have implemented it. The Communication forms part of
the process of reviewing the consumer acquis, which is
consistent with the better regulation objectives pursued by the
Commission, the European Parliament and the EESC in terms of
simplification of the regulatory environment.

The Directive aims at harmonising those parts of
law that concern legal guarantees

2.4
consumer
(warranties), and to a lesser extent, commercial guarantees.

sale contract

2.5
All Member States were required to implement the Direc-
tive into their national law by 1 January 2002 and were also
allowed to adopt more stringent provisions in favour of the
consumer.

2. Introduction

The Commission draws attention to the shortcomings of

2.6
some Member States in implementing the Directive.

On 24 April 2007, the European Commission adopted
2.1
the Communication on the
implementation of Directive
1999/44/EC (the ‘Consumer Sales’ Directive) on certain aspects
the sale of consumer goods and associated guarantees
of
including analysis of the case for introducing direct producers'
liability as provided by Article 12 of the Directive.

2.2
On 8 February 2007, the European Commission adopted
its Green Paper on the Review of the Consumer Acquis. The
Directive 1999/44/EC is one of the eight Consumer Directives
listed in Annex 2 of the Green Paper.

3. Summary of the Commission Communication

3.1
This Communication is concerned with the implementa-
tion 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 (the ‘Consumer
Sales’ Directive) across Member States and examines the case for
introducing, at Community level, direct producers' liability, as
provided by Article 12 of the Directive itself.

(4) UGAL: Union des groupements de détaillants indépendants de l'Eu-

rope.

(5) See footnote 1.

(6) CESE 984/2007, rapporteur Mr Adams, OJ C 256 27.10.2007.
(7) OJ L 171 07.07.1999 p. 12.

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3.2
The Commission Communication highlights difficulties
experienced by some Member States in implementing the Direc-
tive. In particular problems arise from diverging definitions of
‘consumer’ and ‘seller’ where there are different definitions in
other Community acts.

3.3
Similarly the definition of ‘consumer goods’ in Article 1(2)
(b) of the Directive determines its scope. Member States have
transposed the definition in different ways. In some Member
States the relevant laws also apply to consumer sales of real
property.

3.4
Some Member States exclude ‘second-hand goods sold at
public auctions where the consumer has the opportunity to attend the
sale in person’. Some have made use of this option. Others have
chosen to limit the sellers' liability for such goods.

3.5
All Member States have introduced national laws trans-
posing the requirements of the Directive. Article 12 provides
that the Commission submit to the European Parliament and
the Council (within a specified period), a report on the applica-
tion of this Directive across Member States, in particular exam-
ining, inter alia, the case for introducing direct producers' liability
and, if appropriate, be accompanied by proposals. This Commu-
nication discharges that obligation.

3.6
Part I of this Communication reports on the implemen-
tation of the Consumer Sales Directive across Member States
and Part II examines the case for introducing the direct liability
of producers towards consumers in the EU legislation.

3.7
The transposition of the Directive has raised a number of
problems. Some of them may be due to regulatory gaps in the
Directive, but others can already be considered as incorrect
transposition of the Directive. The Commission checks have
laws as a
shown up significant divergences between national
result of the use of the minimum clause and the various regula-
tory options provided by the Directive. However, it is not clear
at present to what extent those divergences affect the proper
functioning of the Internal Market and consumer confidence.

3.7.1
The Green Paper presented for public consultation a
number of cross-cutting issues relating to gaps and regulatory
shortcomings the Commission has identified during its review
of the consumer acquis, including those relating to the imple-
mentation of the Directive. For these reasons, the Commission
has decided not to submit any proposal at this stage in respect
of the Directive.

3.7.2
So far as the issue of DPL is concerned the Commis-
sion has concluded that it has insufficient evidence to determine
whether the lack of EU rules has an adverse effect on consumer
confidence in the internal market. The issue is being considered
further in the context of the Green Paper.

3.8
In its opinion on the Green Paper on the Review of
Consumer Acquis (8) the EESC concludes that it has doubts that
the approach put forward can lead to a high and uniform level
of consumer protection across the EU. Genuine democratic
legitimisation of
the revised consumer acquis is necessary
together with a clear legal and conceptual basis. The EESC
draws attention to the poorly regulated digital environment.
Any proposals for harmonised rules in the field should be
backed by a proper impact assessment, and pursue simplifica-
tion and clarification of existing rules. Better enforcement
measures and strengthening or introducing clear and simple
processes for achieving redress should be emphasised as a
priority. Harmonisation of consumer legislation across the EU
must take, as a guiding principle, the adoption of the best and
highest level of consumer protection to be found in the Member
States.

4. Transposition problems

The Commission's transposition checks have shown up
4.1
significant divergences between national
laws transposing the
Directive 1999/44/EC. Some of these may be due to regulatory
gaps in the Directive, others can already be considered as incor-
rect transposition of the Directive. It is unclear at present to
what extent those divergences affect the proper functioning of
the Internal Market and consumer confidence. The EESC recom-
mends that the Commission study the implications for both the
Internal Market and consumer confidence as a matter of
urgency and take enforcement action against those Member
States who are in default (9).

5. Direct Producers' Liability (DPL)

5.1
Some Member States have introduced various forms of
Direct Liability of Producers. These differ considerably as to the
conditions and modalities. The Directive of 1999 requires the
Commission to examine the case for introducing Direct Produ-
cers' Liability and, if appropriate, to submit a proposal. Of the
17 Member States which responded to the Commission's ques-
tionnaire, 7 have introduced some form of DPL though the
conditions for making direct claims against producers vary
considerably. There are also strong objections to the concept
from some Member States and from some stakeholders some of
whom suggest that it is too early to assess its effects on the
need for an amendment
to Directive 1999/44/EC in isola-
tion (10).

(8) CESE 984/2007, OJ C 256 27.10.2007.
(9) See footnote 1.
(10) See footnote 3.

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stakeholders consider

5.2
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
the DPL potentially
number of
increases consumer protection. However, there is disagreement
between Member States about DPL some considering that the
producer is better placed than the seller to bring goods into
conformity with the contract. Others believe that DPL would
not increase consumer protection but rather cause legal uncer-
tainty. The EESC believes that more information is necessary on
these points.

that

5.3
A number of stakeholders and some Member States
consider that DPL would cause a significant burden for busi-
nesses since producers would need to develop systems for hand-
ling complaints and make financial provision for exposure to
this liability. There is no unanimity, however, other Member
States and other stakeholders disagree.

5.4
The existence of diverging regimes of DPL is a potential
problem for the Internal Market. At this stage, the Commission
has not been able to draw final conclusions. There is not
enough evidence to determine whether the lack of EU rules on

Brussels, 13 February 2008.

DPL has a negative effect on consumer confidence in the
Internal Market.

The case for making DPL obligatory across all Member
5.5
States is far from clear cut. DPL would introduce an extended
chain of liability compared with a claim against the seller. It
depends on the product or service concerned. Cross-border
shopping for big ticket items such as cars directly involves the
manufacturer. However, thanks to European Community legisla-
tion sales agents or distributors for cars have to respect the
manufacturer's warranty no matter from where the vehicle is
purchased. Cross-border purchases of wines and spirits which
the Single
are becoming an increasingly significant part of
Market are difficult to enforce either against the seller or the
‘manufacturer’ unless the purchaser is making frequent visits to
another Member State where the goods were purchased. For
consumer products in general the introduction of a DPL may
add to the consumer protection and the consumer's reliance on
the Single Market.

The issue of DPL requires much closer study accompa-

5.6
nied by a detailed Impact Assessment.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS