Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände.
Date: 2008-04-17
19. In that regard, it must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, and which must determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑419/04 Conseil général de la Vienne  [2006] ECR I‑5645, paragraph 19, and Case C‑119/05 Lucchini  [2007] ECR I‑0000, paragraph 43).
20. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Conseil général de la Vienne , paragraph 20, and Lucchini , paragraph 44).
22. The uncertainty as to whether the national court – following an answer given by the Court of Justice to a question referred for a preliminary ruling relating to interpretation of a directive – may, in compliance with the principles laid down by the Court (see, to that effect, Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraphs 113 to 116, and Case C‑212/04 Adeneler and O thers  [2006] ECR I‑6057, paragraphs 110 to 112), interpret national law in the light of that answer cannot affect the Court’s obligation to rule on that question. Any other approach would be incompatible with the very aim of the powers given to the Court by Article 234 EC, which are intended, in essence, to ensure the uniform application of Community law by the national courts (Case C‑461/03 Gaston Schul Douane-expediteur  [2005] ECR I‑10513, paragraph 21, and Case C‑344/04 IATA and ELFAA  [2006] ECR I‑403, paragraph 27).
26. As a preliminary point, it should be borne in mind that, under Article 3(1) of the Directive, the seller is to be liable to the consumer for any lack of conformity in the goods at the time when they are delivered.
27. Article 3(2) of the Directive lists the rights which the consumer may rely on against the seller in cases where the goods delivered are not in conformity. Initially, the consumer has the right to require the goods to be brought into conformity. If that is not possible, he may subsequently require a reduction in the price or rescission of the contract.
31. The expression ‘free of charge’ is defined in Article 3(4) of the Directive as referring to ‘the necessary costs incurred to bring the goods into conformity, particularly the cost of postage, labour and materials’. It follows from the use by the Community legislature of the adverb ‘particularly’ that that list is illustrative, not exhaustive.
32. The fact, relied upon by the German Government, that Press Release C/99/77 of the ‘Parliament – Council’ Conciliation Committee of 18 March 1999 on agreement on consumer guarantees gives a restrictive definition of the term ‘free of charge’ is irrelevant in that regard. It is settled case-law that, where a statement recorded in Council minutes is not referred to in the wording of a provision of secondary legislation, it cannot be used for the purpose of interpreting that provision (see, inter alia, Case C‑292/89 Antonissen  [1991] ECR I‑745, paragraph 18, and Case C‑402/03 Skov and Bilka  [2006] ECR I‑199, paragraph 42).
33. Thus it follows from the wording of the Directive, as well as from the related travaux préparatoires, that the Community legislature intended to make the ‘free of charge’ aspect of the seller’s obligation to bring goods into conformity an essential element of the protection afforded to consumers by the Directive.
34. The ‘free of charge’ requirement attaching to the seller’s obligation to bring the goods into conformity, whether by repair or replacement, is intended to protect consumers from the risk of financial burdens which, as the Advocate General observed in point 49 of her Opinion, might dissuade them from asserting their rights in the absence of such protection. The certain nature of the ‘free of charge’ aspect, which was intentional on the part of the Community legislature, means that the seller cannot make any financial claim in connection with the performance of its obligation to bring into conformity the goods to which the contract relates.
35. Support for that interpretation is to be found in the intention, manifested by the Community legislature in the third subparagraph of Article 3(3) of the Directive, to provide effective protection to consumers. That provision states that any repair or replacement is to be completed not only within a reasonable time but also without significant inconvenience to the consumer.
36. That interpretation is also consistent with the purpose of the Directive which, as stated in the first recital in the preamble thereto, is to ensure a high level of consumer protection. As follows from Article 8(2) of the Directive, the protection provided by it is minimal and, although Member States may adopt more stringent provisions, they may not undermine the guarantees laid down by the Community legislature.
40. As regards, secondly, the German Government’s assertion that the fact that, by virtue of the replacement of goods not in conformity, the consumer has the benefit of new goods without having to make proper payment constitutes unjust enrichment, it should be borne in mind that Article 3(1) of the Directive makes the seller liable to the consumer for any lack of conformity which exists at the time the goods are delivered.
41. If a seller delivers goods which are not in conformity, it fails correctly to perform the obligation which it accepted in the contract of sale and must therefore bear the consequences of that faulty performance. By receiving new goods to replace the goods not in conformity, the consumer – who, for his part, paid the selling price and therefore correctly performed his contractual obligation – is not unjustly enriched. He merely receives, belatedly, goods in conformity with the specifications of the contract, which he should have received at the outset.
42. The fact remains that the seller’s financial interests are protected, on the one hand, by the two-year time-limit laid down in Article 5(1) of the Directive and, on the other, by the fact that, under the second subparagraph of Article 3(3) of the Directive, it may refuse to replace the goods where that remedy would be disproportionate in that it would impose unreasonable costs on the seller.