PUBLICATIONS
Directive (EU) 2019/771 on certain aspects of contracts for the sale of goods governs the rules which apply to the sale of goods[1], whether they are existing or to be manufactured in the future.[2] The Directive is a maximum harmonization Directive[3] and covers goods that incorporate digital content or digital services, which for the purposes of the Directive are called “goods with digital elements”.[4] However, it does not include goods that serve exclusively as a tangible medium used exclusively as a carrier for the transfer of digital content.[5]
For a good to be considered as a “good with digital element”, the absence of digital content or service must prevent the goods from performing their functions.[6] It is noted that where the contract concerns the sale of purely digital content, then the above Directive does not apply, but Directive (EU) 2019/770 applies.
The Directive applies to sales contracts between a consumer and a seller[7]. A sales contract is defined as
“…any contract under which the seller transfers or undertakes to transfer ownership of goods to a consumer, and the consumer pays or undertakes to pay the price thereof;”
The definition given to the seller and the consumer is the same as that given in other Directives. For example, “Seller” is defined as:
“…any natural person or any legal person, irrespective of whether privately or publicly owned, that is acting, including through any other person acting in that natural or legal person’s name or on that person’s behalf, for purposes relating to that person’s trade, business, craft or profession, in relation to contracts covered by this Directive;”
Consumer is defined as:
“…any natural person who, in relation to contracts covered by this Directive, is acting for purposes which are outside that person’s trade, business, craft or profession;”
CONFORMITY OF GOODS AND LEGAL GUARANTEE
According to the Directive, the seller must deliver to the consumer, goods that conform with the requirements of the Directive. There are subjective and objective requirements of conformity in the Directive.
The subjective requirements for conformity state that the goods shall conform with the requirements agreed between the seller and the consumer, as required by the sales contract. These requirements may include, but are not limited to, the quantity, quality, type and description of the goods, their suitability for a particular purpose, and their delivery with all the agreed accessories and instructions.[8]
The objective requirements for conformity require that the seller sells goods which are suitable for the purposes for which goods of the same type are normally used, provided they are supplied with accessories and instructions which the consumer can reasonably expect to receive or if the sale is by sample, then the goods must correspond to the sample which the seller made available to the consumer. The goods must also have the quality and other characteristics normally found in goods of the same type, which the consumer may reasonably expect given the nature of the goods and considering any public statement made by or on behalf of the seller, or other persons in previous links of the chain of transactions.[9]
Any lack of conformity resulting from the incorrect installation of the goods shall be regarded as lack of conformity of the goods by the seller himself (not a third party) or due to shortcomings in the installation instructions provided by the seller to the consumer.[10]
The Directive provides for a legal guarantee in any sale of goods. Based on this, the seller is responsible for any non-compliance that becomes apparent within 2 years from the time of delivery.[11] This guarantee also covers second-hand goods, but, in relation to such goods, the parties may agree for shorter periods which may not be less than one year.[12] Such an agreement is considered invalid in relation to new goods. [13]
The burden of any lack of conformity which becomes apparent within one year of the time when the goods were delivered is presumed to have existed at the time when the goods were delivered unless this presumption is incompatible with the nature of the goods or with the nature of the lack of conformity.[14]
CONSUMER RIGHTS IN CASE OF LACK OF CONFORMITY
In the event of a lack of conformity, the consumer is entitled to:[15]
- Request the repair or replacement of the goods unless the remedy chosen would be impossible or, compared to the other remedy.[16] The repair should be free of charge and must be carried out within a reasonable period of time from the moment the seller has been informed by the consumer about the lack of conformity and without significant inconvenience to the consumer.[17] In case of replacement of goods, the repair of the goods is performed at the expense of the seller.[18]
Where the restoration of conformity is impossible or imposes costs on the seller that would be disproportionate, taking into account the value of the goods would have if there were no lack of conformity, the significance of the lack of conformity, then the seller may refuse to bring the goods into conformity.[19]
- Request a price reduction. The reduction is proportional to the decrease in the value of the goods received by the consumer compared to the value the goods would have if they were in conforming with the contract.[20]
- Terminate the contract. Termination means that the consumer returns the goods at the seller’s expense and the seller returns to the consumer the price he paid for the goods as soon as he receives the goods or some proof from the consumer that the goods have been returned.[21]21 Where the lack of conformity relates to part of the goods, then the consumer may terminate the sales contract only in relation to those goods, unless the consumer cannot reasonably be expected to accept to keep only the conforming goods.[22] 22
According to article 13 (4) of the Directive, remedies 2 and 3 above may be exercised when:[23] 23
“(a) the seller has not completed repair or replacement or, where applicable, has not completed repair or replacement, or the seller has refused to bring the goods into conformity;
(b) a lack of conformity appears despite the seller having attempted to bring the goods into conformity;
(c) the lack of conformity is of such a serious nature as to justify an immediate price reduction or termination of the sales contract; or
(d) the seller has declared, or it is clear from the circumstances, that the seller will not bring the goods into conformity within a reasonable time, or without significant inconvenience for the consumer.”
The consumer shall not be entitled to terminate the contract if the lack of conformity is only minor.[24]
COMMERCIAL GUARANTEES
A differentiation of this Directive from the older Directive 1999/44 / EC (which has now been repealed)[25] is that there is now an explicit differentiation between legal guarantees and commercial guarantees.[26] According to the Directive, the commercial guarantee is:
“any undertaking by the seller or a producer (the guarantor) to the consumer, in addition to the seller’s legal obligation relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract”
The Directive states that the commercial guarantee is binding on the guarantor and in the event that the terms of the commercial guarantee are less favorable to the consumer than those included in associated advertisements, then the more advantageous conditions should prevail.[27] The commercial guarantee statement shall be provided to the consumer on a durable medium the latest at the time of the delivery of the goods and shall therefore be expressed in plain and intelligible language.[28]
The publication of this article is partly funded by the European Union’s “Consumer Programme (2014-2020)”.
[1] Directive (EU) 2019/771, Preamble 10
[2] Ibid Article 3(2)
[3] Ibid Article 4
[4] Ibid Preamble 13
[5] Ibid Article 3(4)(α)
[6] Ibid Article 2(5)
[7] Ibid Article 3(1)
[8] Ibid Άρθρο 6, Προοίμιο 26
[9] Ibid Άρθρο 7(1), Προοίμιο 29
[10] Ibid Άρθρο 8
[11] Ibid Άρθρο 10(1)
[12] Ibid Άρθρο 10(6)
[13] Ibid Άρθρο 21(1)
[14] Ibid Άρθρο 11(1)
[15] Ibid Άρθρο 13(1)
[16] Ibid Article 13(2)
[17] Ibid Article 14(1)
[18] Ibid Article 14(2)
[19] Ibid Article 13(3)
[20] Ibid Article 15
[21] Ibid Article 16(3)
[22] Ibid Article 16(2)
[23] Ibid Article 13(4)
[24] Ibid Article 13(5)
[25] Ibid Article 23
[26] Ibid Article 2(12)
[27] Ibid Preamble 62⸱ Article 17(1)
[28] Ibid Article 17(1)
