Background

In follow-up to our recent article[1] on the novelties brought by the Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (the “Directive”) and its transposition into Romanian law, we will shortly review below the implementation specifics of the Directive in selected European Union member states.

This article focuses on the implementation of the most import provisions of the Directive in Austria, Cyprus, Spain, France and Luxembourg (collectively referred to as the “Countries”), more specifically on relevant additions brought to the same under the national transpositions of the Directive.

Liability of the seller

As mentioned in our initial article, under the Directive, the seller is liable to the consumer for any lack of conformity which exists at the time when the goods are delivered and which is discovered within two years of that time.

Moreover, in case of goods with digital elements, when the sales contract provides for continuous supply of digital content or digital services over a period of time, the seller will be liable for any lack of conformity of the digital content or digital service which occurs or is discovered within two years from the delivery date of such goods. If the contract provides for a continuous supply for more than two years, the seller will be liable for any lack of conformity of the digital content or digital service which occurs or is discovered within the period of time during which the digital content or digital service is to be supplied under the sales contract.

Luxembourg and Cyprus have implemented the above referenced provisions in identical form to the Directive. In the case of France and Austria, the provisions have been transposed in very slightly different wording but without impacting the effects thereof.

Instead, in Spain, based on the transposition of the Directive, the seller is liable to the consumer for any lack of conformity which exists at the time when the goods are delivered and which is discovered within three years following the delivery, instead of two. Moreover, under the Spanish transposition of the Directive, if the sales contract provides for the continuous supply of digital content or services for a period of less than three years, the period of liability will be three years from the time of delivery.

Regarding the burden of proof, the Directive provides that any lack of conformity which becomes apparent within one year of the time when the goods were delivered will be presumed to have existed at the time when the goods were delivered, unless proved otherwise or unless this presumption is incompatible with the nature of the goods or with the nature of the lack of conformity.

While Luxembourg and Austria have implemented the one-year period, Cyprus, Spain and France respective implementations of the Directive provide for a two-year period as of the delivery of goods.

Consumer remedies

The Directive provides consumers with a number of remedies for lack of conformity, namely the repair and replacement of goods, price reduction and termination of the sales contract.

The transposition of the Directive in Cyprus and France provide some notable additions to the Directive, as presented below.

Thus, in case of Cyprus transposition, the main additions / clarifications are:

The implementation of the Directive in France also provides relevant additions / clarifications, as follows:

Furthermore, as permitted by the Directive, the Luxembourg and Cyprus transposition of the same provide for the obligation of the consumer to notify the seller in order to benefit of his or her rights under the legal guarantee of conformity.

Commercial guarantees

As also mentioned in our previous article, commercial guarantee certificates must contain the following information:

The Countries bring a few additions to these requirements, especially, as expected, related to the languages to be used:

Furthermore, the French transposition of the Directive adds useful provisions regarding the compliance of the commercial guarantee. Thus, any professional operating in certain economic sectors may request the administrative authority responsible for competition and consumption to take a formal position on the compliance of the commercial guarantee that it plans to introduce with the legal requirements. According to the French normative act implementing the Directive, the purpose of this formal statement is to protect the professional from a change in assessment by the administrative authority that would expose the seller to fines.

A decree of the French Council of State will specify the list of relevant economic sectors in which particular difficulties arise in the area of commercial guarantees.

This article contains general information and cannot be considered qualified legal advice.

[1] Daniel Alexie, Carmen Bănică, “Romania – Consumer Protection Updates In The Sale Of Goods Field”, available in English at https://www.mprpartners.com/wp-content/uploads/2022/01/Sale_of_goods_Directive_e_20220117.pdf, accessed on February 7, 2022.