Froukje Faber v Autobedrijf Hazet Ochten BV.
Date: 2015-06-04
33. It must be pointed out at the outset that the dispute in the main proceedings is between two individuals. Although it is true that, in such an action, neither of the parties may rely on the direct effect of Directive 1999/44, it is, however, settled case-law that a national court, when hearing a case exclusively between individuals, is required, when applying the provisions of domestic law, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the applicable directive in order to achieve an outcome consistent with the objective pursued by that directive (see, inter alia, judgment in LCL Le Crédit Lyonnais , C‑565/12, EU:C:2014:190, paragraph 54 and the case-law cited).
38. In that regard, it is, in principle, for the national court, for the purpose of identifying the legal rules applicable to a dispute which has been brought before it, to assign a legal classification to the facts and acts on which the parties rely in support of their claims. That legal classification is a prerequisite in a case in which, like that in the main proceedings, the guarantee or warranty in respect of the goods sold, on which the applicant is relying, may be governed by different rules depending on the purchaser’s status. Such a classification does not, in itself, imply that the court is, of its own motion, exercising a discretion, but merely that it is establishing and ascertaining whether there is a statutory condition which determines the applicable legal rule.
39. In the same way that, within the context of the detailed procedural rules of its domestic legal order, the national court is called upon, for the purpose of identifying the applicable rule of national law, to classify the matters of law and of fact which the parties have submitted to it, if necessary by requesting the parties to provide any useful details, it is required, in accordance with the principle of equivalence, to carry out the same process for the purpose of determining whether a rule of EU law is applicable.
42. In fact, the Court has required, on the basis of the principle of effectiveness and notwithstanding rules of domestic law to the contrary, the national court to apply of its own motion certain provisions contained in European Union directives on consumer protection. That requirement has been justified by the consideration that the system of protection introduced by those directives is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge and that there is a real risk that the consumer, particularly because of a lack of awareness, will not rely on the legal rule that is intended to protect him (see, to that effect, as regards Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), judgment in Mostaza Claro , C‑168/05, EU:C:2006:675, paragraph 28 and the case-law cited, and, as regards Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48), judgment in Rampion and Godard , C‑429/05, EU:C:2007:575, paragraph 65).
43. The Court has stated that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies (see, inter alia, judgment in Kušionová , C‑34/13, EU:C:2014:2189, paragraph 52 and the case-law cited).
46. Rather, the principle of effectiveness requires a national court before which a dispute relating to a contract which may be covered by that directive has been brought to determine whether the purchaser may be classified as a consumer, even if the purchaser has not expressly claimed to have that status, as soon as that court has at its disposal the matters of law and of fact that are necessary for that purpose or may have them at its disposal simply by making a request for clarification,
47. It must be added that the question of whether the consumer is assisted by a lawyer or not cannot alter that conclusion, as the interpretation of EU law and also the scope of the principles of effectiveness and equivalence are independent of the specific circumstances of each case (see, to that effect, judgment in Rampion and Godard , EU:C:2007:575, paragraph 65).
48. In the light of the foregoing considerations, the answer to the first, second, third and seventh questions is that Directive 1999/44 must be interpreted as meaning that a national court before which an action relating to a contract which may be covered by that directive has been brought is required to determine whether the purchaser may be classified as a consumer within the meaning of that directive, even if the purchaser has not relied on that status, as soon as that court has at its disposal the matters of law and of fact that are necessary for that purpose or may have them at its disposal simply by making a request for clarification.
The fourth question
55. The apportionment of the burden of proof under Article 5(3) of Directive 1999/44 is, in accordance with Article 7 of that directive, binding in nature both for the parties, who may not derogate from it by means of an agreement, and for the Member States, which must ensure that it is complied with. It follows that that rule relating to the burden of proof must be applied even though it has not been expressly relied on by the consumer who may benefit from it.
56. In view of the nature and importance of the public interest underlying the protection which Article 5(3) of Directive 1999/44 confers on consumers, that provision must be regarded as a provision of equal standing to a national rule which ranks, within the domestic legal system, as a rule of public policy. It follows that where, under its domestic legal system, it has a discretion as to whether to apply such a rule of its own motion, the national court must of its own motion apply any provision of its domestic law which transposes Article 5(3) of Directive 1999/44 (see, to that effect, judgment in Asturcom Telecomunicaciones , C‑40/08, EU:C:2009:615, paragraphs 52 to 54 and the case-law cited).
61. According to the travaux préparatoires  in respect of that directive, that option reflects the aim of reinforcing legal certainty, by encouraging ‘diligence’ on the part of the purchaser, ‘taking the seller’s interests into account’, ‘but does not establish a strict obligation to carry out a detailed inspection of the good’ (see the explanatory memorandum to the proposal for a directive, COM(95) 520 final, p. 14).
62. As is apparent from the wording of Article 5(2) of Directive 1999/44, read in the light of recital 19 in the preamble thereto, and from the purpose of that provision, the obligation thereby imposed on the consumer cannot go beyond that of informing the seller that a lack of conformity exists.
63. As regards the content of that notification, the consumer cannot be required, at that stage, to furnish evidence that a lack of conformity actually adversely affects the goods that he has purchased. In view of his weak position vis-à-vis the seller as regards the information relating to the qualities of those goods and to the state in which they were sold, the consumer cannot, in addition, be required to state the precise cause of that lack of conformity. By contrast, in order for the notification to be of use to the seller, it must include a certain number of particulars — the degree of precision of which will necessarily vary depending on the specific circumstances of each case — relating to the nature of the goods in question, the wording of the contract of sale in respect of those goods and the way in which the alleged lack of conformity became apparent.