Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 15 January 2019(1)

Case C‑52/18

Christian Fülla

v

Toolport GmbH

(Request for a preliminary ruling from the Amtsgericht Norderstedt (Local Court, Norderstedt, Germany))

(Request for a preliminary ruling — Consumer protection — Directive 1999/44/EC — Sale of consumer goods — Rights of the consumer — Lack of conformity of the goods delivered — Subsequent bringing into conformity of the goods — Obligations of the seller — Determination of the place where the goods have to be made available for repair or replacement (place of subsequent performance) — Meaning of ‘significant inconvenience to the consumer’ — Meaning of ‘to repair free of charge’ — Right to have the contract rescinded)

1.        In consumer sales, where goods are acquired under a distance contract and later turn out not to be in conformity with that contract, is there a definitive rule, as a matter of EU law, that determines where the consumer must make those goods available to the seller to be brought into conformity?

2.        In the age of digital commerce, that question is of increasing importance, especially where heavy or bulky consumer goods are concerned. In the present case, referred by the Amtsgericht Norderstedt (Local Court, Norderstedt, Germany), a 5x6 metre party tent is alleged to have been delivered with defects.

3.        In order to answer the question, the Court will have to resolve a number of issues governed by Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees (‘the Directive’). (2)

I.      Legal framework

A.      EU law

4.        The Directive harmonised, to a certain extent, the seller’s obligation to bring consumer goods into conformity with the contract.

5.        The preamble of the Directive states as follows:

‘(1)      Whereas Article 153(1) and (3) [EC] provides that the Community should contribute to the achievement of a high level of consumer protection by the measures it adopts pursuant to Article 95 thereof;

(2)      Whereas the internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is guaranteed; whereas free movement of goods concerns not only transactions by persons acting in the course of a business but also transactions by private individuals; whereas it implies that consumers resident in one Member State should be free to purchase goods in the territory of another Member State on the basis of a uniform minimum set of fair rules governing the sale of consumer goods;

…

(12)      Whereas in cases of a lack of conformity, the seller may always offer the consumer, by way of settlement, any available remedy; whereas it is for the consumer to decide whether to accept or reject this proposal;

…

(19)      Whereas Member States should be allowed to set a period within which the consumer must inform the seller of any lack of conformity; whereas Member States may ensure a higher level of protection for the consumer by not introducing such an obligation; whereas in any case consumers throughout the Community should have at least two months in which to inform the seller that a lack of conformity exists’.

6.        Article 2(2) of the Directive provides:

‘Consumer goods are presumed to be in conformity with the contract if they:

(a)      comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model;

(b)      are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted;

(c)      are fit for the purposes for which the goods of the same type are normally used;

(d)      show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.’

7.        Article 3 of the Directive concerns the rights of consumers in relation to contracts for the sale of consumer goods and associated guarantees. It states:

‘1.      The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.

2.      In the case of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement, in accordance with paragraph 3, or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods, in accordance with paragraphs 5 and 6.

3.      In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate.

A remedy shall be deemed to be disproportionate if it imposes costs on the seller which, in comparison with the alternative remedy, are unreasonable, taking into account:

–        the value the goods would have if there were no lack of conformity,

–        the significance of the lack of conformity, and

–        whether the alternative remedy could be completed without significant inconvenience to the consumer.

Any repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.

4.      The terms “free of charge” in paragraphs 2 and 3 refer to the necessary costs incurred to bring the goods into conformity, particularly the cost of postage, labour and materials.

5.      The consumer may require an appropriate reduction of the price or have the contract rescinded:

–        if the consumer is entitled to neither repair nor replacement, or

–        if the seller has not completed the remedy within a reasonable time, or

–        if the seller has not completed the remedy without significant inconvenience to the consumer.

6.      The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.’

8.        Article 8(2) moreover provides that ‘Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higher level of consumer protection’.

B.      German law

9.        The Directive was transposed into German law by way of amendments to the Bürgerliche Gesetzbuch (German Civil Code: BGB).

10.      Paragraph 439 of the BGB provides, concerning subsequent performance:

‘(1)      By way of subsequent performance, the purchaser may require the repair of the defect or the delivery of goods which are free from defect, according to his preference.

(2)      The seller shall bear the costs necessary for the purposes of the subsequent performance, including in particular the costs of transport, carriage, labour and materials.

(3)      … the seller may refuse the manner of subsequent performance chosen by the purchaser if such performance is possible only at disproportionate cost. In that regard, account must be taken in particular of the value that the goods would have if there were no lack of conformity, the significance of the lack of conformity, and whether the alternative remedy could be effected without significant inconvenience to the purchaser. In such cases the right of the purchaser shall be restricted to the alternative means of subsequent performance; this is without prejudice to the right of the seller also to refuse the alternative remedy, subject to the conditions laid down in the first sentence.

(4)      Where a seller delivers goods free from defects for the purposes of subsequent performance, he may require the purchaser to return the defective goods pursuant to Paragraphs 346 to 348.’

11.      With regard to the place of performance, Paragraph 269 of the BGB states as follows:

‘(1)      Where no place of performance has been specified or is evident from the circumstances, in particular from the nature of the obligation, performance must be made in the place where the obligor had his residence at the time when the obligation arose.

(2)      If the obligation arose in the commercial undertaking of the obligor, the place of the commercial undertaking takes the place of the residence if the obligor maintained his commercial undertaking at another place.

(3)      From the sole circumstance that the obligor has assumed the costs of shipping it may not be concluded that the place to which shipment is to be made is to be the place of performance.’

II.    Facts, procedure and the questions referred

12.      In 2015 the applicant in the main proceedings purchased a 5x6 meter tent (described as a ‘Partytent’) from the defendant over the telephone. The tent was delivered to the applicant’s place of residence. The applicant then claimed that the tent had certain defects. The defendant rejected all complaints of defects as unfounded.

13.      The applicant demanded subsequent performance, that is to say that the defects be repaired or a replacement tent be provided. However, the applicant did not send the goods at issue to the defendant, or even offer to do so.

14.      There was no discussion between the parties about the place of such subsequent performance at that point. The contract concluded between the parties is also silent on that subject.

15.      However, in the course of the main proceedings, the defendant claimed, for the first time, that the place for subsequent performance is its place of business.

16.      According to the referring court, determination of the place for subsequent performance is essential in order to determine whether the applicant gave the defendant an opportunity to remedy the defects, or a reasonable time within the meaning of the second indent of Article 3(5) of the Directive, in order to be able to rescind the contract.

17.      Entertaining doubts as to the correct interpretation of the relevant provisions of EU law, the Amtsgericht Norderstedt (Local Court, Norderstedt) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is the third subparagraph of Article 3(3) of [the Directive] to be interpreted as meaning that a consumer must in all cases offer goods acquired under a distance contract to an undertaking in order to enable repair or replacement only at the place where the goods are located?

(2)      If not:

Is the third subparagraph of Article 3(3) of [the Directive] to be interpreted as meaning that a consumer must in all cases offer goods acquired under a distance contract to an undertaking in order to enable repair or replacement at the undertaking’s place of business?

(3)      If not:

What criteria can be derived from the third subparagraph of Article 3(3) of [the Directive] as regards how to specify the place where the consumer must offer goods acquired under a distance contract to the undertaking in order to enable repair or replacement?

(4)      If the place where the consumer must offer goods acquired under a distance contract to an undertaking for examination and to enable repair is – in all cases or in this specific case – the undertaking’s place of business:

Is it compatible with the first subparagraph of Article 3(3) of [the Directive], in conjunction with Article 3(4) thereof, for a consumer to have to pay the costs of outward and/or return shipping, or does it follow from the requirement “to repair free of charge” that the seller is required to make an advance payment?

(5)      If the place where the consumer must offer goods acquired under a distance contract to an undertaking for examination and to enable repair is – in all cases or in this specific case – the undertaking’s place of business and a requirement for the consumer to pay costs in advance is compatible with the first subparagraph of Article 3(3) of [the Directive], in conjunction with Article 3(4) thereof:

Is the third subparagraph of Article 3(3) of [the Directive], in conjunction with the second indent of Article 3(5) thereof, to be interpreted as meaning that a consumer who has merely notified a defect to the undertaking is not entitled to have a contract rescinded without offering to transport the goods to the place where the undertaking is located?

(6)      If the place where the consumer must offer goods acquired under a distance contract to an undertaking for examination and to enable repair is – in all cases or in this specific case – the undertaking’s place of business and a requirement for the consumer to pay costs in advance is not compatible with the first subparagraph of Article 3(3) of [the Directive], in conjunction with Article 3(4) thereof:

Is the third subparagraph of Article 3(3) of [the Directive], in conjunction with the second indent of Article 3(5) thereof, to be interpreted as meaning that a consumer who has merely notified a defect to the undertaking is not entitled to have a contract rescinded without offering to transport the goods to the place where the undertaking is located?’

18.      Written observations in the present proceedings have been submitted by the German and French Governments, and by the European Commission. In accordance with Article 76(2) of the Rules of Procedure, the Court decided to proceed without a hearing.

III. Analysis

19.      By its request for a preliminary ruling, the referring court essentially seeks to know how to determine the place of performance for rectifying defects in consumer goods by repair or replacement, and the effects thereof on the right of the consumer to rescind the contract.

20.      Before, however, turning to the substance of the questions referred, the argument of the German Government that the request from the referring court is inadmissible must be addressed.

A.      Admissibility

21.      The German Government claims that the admissibility of the request for a preliminary ruling is ‘at least doubtful’. It argues that both the description of the facts of the case and the presentation of the relevant provisions of national law are rudimentary. In answering the questions referred as presented, the Court would have to operate on the basis of numerous hypotheses and assumptions.

22.      Although the German Government accepts that on the basis of the Court’s case-law there is a presumption in favour of the admissibility of requests for a preliminary ruling, it suggests, at the very least, that the questions referred be reformulated.

23.      It should be borne in mind that in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to give judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions referred concern the interpretation of EU law, the Court is in principle bound to give a ruling. (3)

24.      The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual 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. (4)

25.      I believe that those conditions are not fulfilled in the present case.

26.      The referring court has described the facts of the main proceedings as well as the relevant provisions of national law in a concise, but sufficiently clear, manner so that the Court has all the relevant factual and legal material necessary to enable it to give judgment.

27.      It is clear from the request for a preliminary ruling that the referring court seeks to obtain an interpretation of the Directive in order to determine the place of performance for the rectification of defects in the goods in question and, consequently, whether or not the applicant in the main proceedings may rescind the contract.

28.      In light of the foregoing, the questions referred must be held to be admissible and shall be analysed as to their merits.

B.      Substance

29.      In the alternative to declaring the request of the referring court inadmissible, the German Government suggests that the questions referred by the Amtsgericht Norderstedt (Local Court, Norderstedt) be reformulated. In that respect, it proposes that the questions referred should be interpreted as asking whether the relevant German provisions are precluded by a correct interpretation of the Directive.

30.      In my view, there is no need to reformulate the questions referred. The national court referring the questions seems best suited to determine the content of the questions necessary to resolve the case before it.

31.      Nevertheless, I am of the opinion that some of the questions referred by the Amtsgericht Norderstedt (Local Court, Norderstedt) may best be considered together.

32.      Three distinct issues concerning the interpretation of Article 3 of the Directive arise from the questions referred. By its first, second and third questions, the referring court essentially seeks to determine the place where consumer goods must be made available in order to be brought into conformity (place of subsequent performance). The fourth question referred then deals with the issue whether or not it follows from the requirement ‘to repair free of charge’ that the seller must provide an advance payment for any shipping costs that the consumer might incur in making the goods available to the seller. The fifth and sixth questions referred, finally, concern the circumstances in which a consumer may be entitled to rescind a contract in case of nonconforming goods.

33.      After some preliminary remarks on the context and purpose of the Directive and Article 3 thereof, those three issues will be dealt with in turn.

1.      Preliminary remarks

34.      The Directive forms part of the EU legislature’s efforts to guarantee a uniform minimal level of protection for consumers throughout the European Union from defective performance of a contract for the sale of goods. That protection is intended to encourage and facilitate cross-border purchases by consumers. (5)

35.      However, the Directive does not merely pursue a high level of consumer protection. The text also aims at maintaining a certain balance between the obligations of the various parties. On the one hand, the Directive determines obligations of sellers in case of nonconforming consumer goods. On the other hand, the Directive lays down obligations which consumers must fulfil in order not to forfeit their rights. (6)

36.      In that sense, the overarching aim of the Directive is not to add to the contractual obligations as agreed between the parties, but rather to facilitate enforcement of the obligations as agreed. It is only in the event of defective performance of the contract on the seller’s part that further obligations are imposed that may in some cases exceed the obligations provided for by the contract. (7)

37.      Importantly however, the Directive does not seek to place consumers in a more favourable position than they could claim under the contract of sale, but merely seeks to re-establish the situation which would have prevailed if the seller had delivered goods in conformity with the contract at the outset. In that respect, it is important to note that the Directive provides a minimum level of protection. The Member States may adopt more stringent provisions, but they may not undermine the guarantees laid down by the European Union legislature. (8)

38.      Lastly, it must also be emphasised that the Directive only governs aspects which are strictly linked to the protection of consumers when they buy goods that are not in conformity with the contract. Questions concerning the formation of the contract between the parties, defects in the contract, the effects of the contract, or other forms of incomplete performance, are not addressed by that instrument and are subject to national law only. (9)

39.      Article 3 of the Directive, specifically, sets out the rights of a consumer who has been sold consumer goods that are not in conformity with the contract at the time they are delivered. The provision mirrors the same principles as those guiding the Directive overall.

40.      Thus, Article 3(1) provides that a seller is liable to the consumer for any lack of conformity which exists at the time the goods were delivered. If the goods delivered are not in conformity with the contract, the seller has failed to perform his obligations deriving from the contract of sale and must therefore bear the consequences of that faulty performance. (10)

41.      In accordance with Article 3(2), in those circumstances the consumer is entitled to have the goods repaired or replaced free of charge, to have an appropriate reduction made in the price or the contract rescinded with regard to those goods. It is clear from Article 3(5) that the Directive gives priority to maintaining the obligations arising from the contract of sale. The consumer must give the seller the opportunity to repair or replace the consumer goods in question. Only if the seller fails to do so is the consumer entitled to a reduction in the price or to rescind the contract. (11)

42.      Article 3(3) lays down certain conditions for the bringing into conformity of the goods by repair or replacement. The goods must be brought into conformity free of charge to the consumer, within a reasonable time, and without significant inconvenience to the consumer. As the Court has previously noted, those three requirements are the expression of the clear resolve of the EU legislature to provide effective protection to consumers. (12)

43.      At the same time, the Directive also takes into account the seller’s interests. First, the Directive provides a two-year time limit for bringing claims. (13) Second, the seller may refuse to repair or replace the goods where the bringing into conformity is impossible or disproportionate. (14)

44.      As the Court pointed out in Gebr. Weber and Putz, Article 3 thus aims to establish a fair balance between the interests of the consumer and those of the seller, by guaranteeing the consumer, as the weak party to the contract, complete and effective protection from faulty performance by the seller of his contractual obligations, while enabling account to be taken of economic considerations advanced by the seller. (15)

45.      Like other EU consumer law instruments, the Directive seeks to re-establish a balance in the relationship between consumer and seller, thereby constituting an expression of the principle of freedom of contract enjoyed by the parties. The Directive does not, however, seek to put the consumer in a uniquely favourable position. (16)

46.      The issues raised by the present request for a preliminary ruling must be addressed in the light of that underlying rationale of the Directive.

2.      Where must consumer goods be made available to be brought into conformity (the place of subsequent performance)?

47.      By its first, second and third questions, the referring court essentially seeks to determine the place of performance for the bringing into conformity of consumer goods (the place of subsequent performance). The answer will determine whether it is sufficient for the consumer to make the goods in question available at the place where they are located (usually his place of residence), or whether the consumer must make the goods available at the seller’s place of business.

48.      The parties that submitted observations have presented divergent views on that issue, which lies at the core of the present request for a preliminary ruling.

49.      While both the French Government and the Commission emphasise the high level of consumer protection sought by the Directive, the French Government argues that the requirements for the bringing into conformity laid down in Article 3 of the Directive can be fulfilled only if the consumer merely needs to make the goods in question available at the place where they are located. The Commission on the other hand defends the more nuanced view that the consumer may be obliged to make the goods available at the seller’s place of business except where that would constitute a significant inconvenience to the consumer.

50.      The German Government submits that the requirement that the goods be brought into conformity free of charge for the consumer is not a sufficient indication that the goods must always be made available at the place where they are located. In addition, it argues that it follows from the requirement ‘without any significant inconvenience for the consumer’ that insignificant inconveniences may be imposed on the consumer. As the time and effort involved in making the goods available at the seller’s place of business might vary, it should depend on the specific circumstances of each individual case where the goods must be made available to be brought into conformity with the contract.

51.      Article 3 does not expressly determine where goods not in conformity must be made available for repair or replacement, nor, to my knowledge, has that question yet been addressed by the Court.

52.      However, while not expressly stipulating where defective consumer goods have to be made available in order to be brought into conformity, Article 3 does lay down certain requirements in that regard. As stated above, the repair or replacement of consumer goods not in conformity must be free of charge, completed within a reasonable time and without any significant inconvenience to the consumer.

(a)    The requirement that goods must be brought into conformity free of charge

53.      The requirement that goods must be brought into conformity free of charge is further defined by Article 3(4) which specifies that the terms refer to ‘the necessary costs incurred to bring the goods into conformity, particularly the cost of postage, labour and materials’.

54.      The Court noted in Gebr. Weber and Putzthat the European Union 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 that directive. The requirement is intended to protect consumers from the risk of financial burdens which might dissuade them from asserting their rights in the absence of such protection. (17)

55.      However, Article 3(3) also provides that the seller may refuse to repair or replace the goods free of charge where this is impossible or disproportionate. A remedy is deemed to be disproportionate if it imposes unreasonable costs on the seller. (18)

56.      In that sense, the Directive is not only taking into account the protection of the consumer, but also the economic considerations of the seller. If the seller had to cover disproportionate costs in repairing or replacing goods not in conformity, this would ultimately lead to the seller increasing his prices. The costs thus incurred would, moreover, be passed on to consumers as a whole.

57.      However, it is not evident whether the ‘free of charge’ requirement means that the consumer merely has the right to have any costs arising in the context of the bringing into conformity of goods reimbursed or that he has the right to receive the remedy without any input (financial or otherwise) on his part whatsoever.

58.      I believe the answer to that question lies in the other two requirements mentioned in Article 3 of the Directive.

(b)    The requirement that goods must be brought into conformity within a reasonable time

59.      Article 3(3) also provides, in the third subparagraph, that any repair or replacement must be completed within a reasonable time. That requirement relates to the EU legislature’s aim of resolving any issues between consumer and seller in a speedy and amicable way. (19)

60.      Making the goods available at the seller’s place of business might in certain circumstances ensure a speedy repair or replacement. In such circumstances, it might take a considerable time until the seller could set up an inspection at the place where the goods are located or arrange for their shipment to the seller’s place of business, especially if the seller’s place of business is in a different country.

61.      On the other hand, if the seller already has a logistics network in place for the delivery of goods at the place where the goods are situated, it might be speedier and more cost efficient for the seller to either inspect the goods at the place where they are situated, or to arrange for their shipment.

62.      Accordingly, considered solely from a perspective of expediency, it appears that the place where goods should be made available to be brought into conformity depends on the circumstances of each case.

(c)    The requirement that goods must be brought into conformity without any significant inconvenience to the consumer

63.      The third requirement in Article 3(3) is that goods must be brought into conformity without any significant inconvenience to the consumer. In determining significant inconvenience, account is to be taken of the nature of the goods and the purpose for which the consumer required the goods. (20)

64.      Therefore, the place where goods must be made available to be brought into conformity (the place of subsequent performance) cannot be chosen in such a way that it would significantly inconvenience the consumer. By argumentum a contrario, it can be concluded that the consumer must, however, accept insignificant or minor inconveniences in having goods repaired or replaced. In accordance with the wording of the third subparagraph of Article 3(3), in assessing whether or not something constitutes a significant inconvenience to the consumer, account must be taken of the nature of the goods and the purpose for which the consumer required the goods.

65.      In Gebr. Weber and Putzthe Court stated that, having regard to the high level of consumer protection sought by the Directive, the term ‘without any significant inconvenience to the consumer’ cannot be interpreted in a restrictive manner. (21)

66.      At first view, that statement might seem somewhat contradictory. By qualifying the inconvenience as significant, it seems that the EU legislature intended to establish a rather high threshold for the type of inconvenience the consumer might have to tolerate. However, interpreting the phrase in a broad manner will lower that threshold.

67.      To my mind, in interpreting that phrase a balance must be struck between the interest of protecting the consumer and that of not depriving the qualification introduced by the EU legislature of its effectiveness. I therefore believe that, even in the light of the Court’s dictum in Gebr. Weber and Putz, that phrase, in any case, cannot lead to an interpretation which singularly favours the consumer’s interests. That is especially so in light of the Directive’s aim of establishing a fair balance between, on the one hand, the interests of the consumer and, on the other, the economic considerations of the seller.

68.      Accordingly, in my opinion, a significant inconvenience to the consumer exists where the burden is such as to dissuade the consumer from asserting his rights. (22) However, as with other EU consumer law instruments, the assessment cannot be made on the basis of what might dissuade an individual consumer from asserting their rights. Rather, the objective standard of the kind of burden that would dissuade the average consumer must be used as a reference point in the assessment. (23)

69.      In order to ensure a speedy repair or replacement, the average consumer might be willing to arrange for shipment of the goods in question to the seller’s place of business or to make them available at a nearby service station. However, this will generally depend on the nature of the goods. Where the goods in question are rather compact and can easily be sent through regular mail, it can be assumed that making the goods available at the seller’s place of business will not cause any significant inconvenience to the consumer. If, in contrast, the goods are bulky or otherwise require special handling, the consumer will be more reluctant to arrange for shipment himself.

70.      Thus, the place where the goods must be made available in order to fulfil the requirements of Article 3(3) appears to depend on the specific circumstances of each individual case.

71.      Those considerations are in any case valid for goods purchased by distance selling. In the case where the consumer bought the goods at the seller’s place of business and, moreover, the goods do not require specific installation, it can, to my mind, be assumed that the making available of the goods at the seller’s place of business does not constitute any significant inconvenience to the consumer.

(d)    Further remarks

72.      One might argue that basing the place where goods must be made available for repair or replacement on a circumstantial assessment does not provide a great degree of legal certainty. There might be instances where it is not apparent, from the outset, where goods have to be made available to be brought into conformity.

73.      However, certainty might be enhanced by measures taken by sellers or the Member States.

74.      First, in the interest of consumer satisfaction as well as a speedy and amicable resolution of conformity issues, sellers may voluntarily provide certain aftersales services (such as inspections of defective household appliances at the consumer’s place of residence or return postage labels). In fact, this is already the case in some jurisdictions.

75.      Second, as the Directive is a minimum harmonisation measure and leaves some leeway to Member States, the latter may in their national provisions determine the place where goods must be made available to be brought into conformity, bearing in mind the requirements posed by Article 3(3). Moreover, in accordance with Article 8(2) of the Directive, Member States may always adopt or maintain in force more stringent provisions to ensure a higher level of consumer protection. Thus, in the interest of legal certainty, Member States may enact specific rules for certain categories of goods.

76.      Concluding on the first, second and third questions referred, I propose that the Court reply to the effect that the third subparagraph of Article 3(3) of the Directive is to be interpreted as meaning that the place where a consumer must offer goods acquired under a distance contract to an undertaking in order to enable repair or replacement is to be determined by the national court in the light of all the relevant circumstances of the case before it. In that regard, the place where the goods must be made available must be such as to ensure repair or replacement free of charge, within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.

77.      For the eventuality that the referring court concludes that in this specific case the consumer must make the goods in question available at the seller’s place of business, the issue of whether the consumer is entitled to an advance payment of any shipping costs he might incur will be discussed below.

3.      Does the requirement ‘to repair free of charge’ entitle the consumer to an advance payment for shipping costs?

78.      By the fourth question referred, the national court asks the Court to address the issue whether or not it follows from the requirement ‘to repair free of charge’ that the seller must provide an advance payment for any shipping costs the consumer might incur for making the goods available to the seller.

79.      The terms ‘free of charge’ are defined in Article 3(4) of the Directive as referring to ‘the necessary cost incurred to bring the goods into conformity, particularly the cost of postage, labour and materials’. As the Court already pointed out in Quelle,it follows from the use by the EU legislature of the adverb ‘particularly’ that that list is illustrative, not exhaustive. (24)

80.      It is clear from Article 3(4) that the consumer is in any case not liable for the costs incurred for shipping goods not in conformity back to the seller. However, as alluded to in point 57 above, it is less obvious from that provision whether the ‘free of charge’ requirement includes the right of the consumer merely to have any costs arising from bringing goods into conformity reimbursed or, rather, that no financial contribution from the consumer, even temporarily, may be required during that process.

81.      From the judgment in Gebr. Weber and Putz, it seems that the Court has implicitly accepted the latter interpretation. (25) Moreover, in that judgment the Court stated that it follows from the wording of the Directive, as well as from the related travaux préparatoires, that the EU 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. The ‘free of charge’ requirement attaching to the seller’s obligation to bring the goods into conformity is intended to protect consumers from the risk of financial burdens which might dissuade them from asserting their rights in the absence of such protection. (26)

82.      It might be concluded from this that the consumer should always be provided with advance payment of shipping costs.

83.      However, the Directive does not merely seek to protect the interests of the consumer. The Directive also seeks to balance those interests with the economic considerations of the seller. In addition, the Directive favours a speedy resolution of any conformity issues.

84.      The advance payment of shipping costs by the seller will always increase the time necessary to bring goods into conformity. In addition, advance payment of shipping costs may impose a disproportionate administrative burden on the seller. That would especially be so where the goods in question, upon inspection, turned out not to be defective after all.

85.      Therefore I believe that it is compatible with the underlying rationale of the Directive for consumers to have to advance shipping costs in order for goods to be inspected or brought into conformity at the seller’s place of business. However, in line with the Court’s case-law, the shipping costs may not be so high as to amount to a financial burden which dissuades the consumers from asserting their rights.

86.      Whether or not that threshold is met, to my mind, must be determined on the basis of all the circumstances of each individual case, taking into account factors such as the amount of the shipping costs, the value of the goods, or the means of redress available should the seller not reimburse the advanced costs.

87.      Therefore I propose that the Court answer the fourth question referred to the effect that it is not precluded by the first subparagraph of Article 3(3) of the Directive, in conjunction with Article 3(4) thereof, for a consumer to have to advance the costs of outward and/or return shipping, as long as this does not amount to a financial burden which dissuades the consumer from asserting his rights.

4.      When is the consumer entitled to rescind a contract?

88.      The fifth and sixth questions referred concern the circumstances in which a consumer may be entitled to rescind a contract where goods are not in conformity. More specifically at issue is whether a consumer who has merely notified the seller that goods are not in conformity but who has not made the goods available at the seller’s place of business, or offered to make the goods available at the seller’s place of business, may rely on Article 3(5) of the Directive in order to rescind the contract.

89.      Under Article 3(5) of the Directive, the consumer is entitled to a reduction in price or to have the contract rescinded, first, where repair or replacement is impossible or where it would constitute a disproportionate burden on the seller; second, where the seller has not completed either repair or replacement within a reasonable time; or third, where the seller has not completed the remedy without any significant inconvenience to the consumer. Moreover, the right to rescind the contract does not extend to circumstances where there is only a minor lack of conformity. (27)

90.      Article 3 thus sets up a clear hierarchy of remedies to which the consumer is entitled in case of goods not in conformity. Within that hierarchy, rescission of contract is the remedy of last resort. The Directive clearly favours the performance of the contract, in the interest of both parties to it. (28)

91.      That is why, in my opinion, the possibility of rescinding the contract must be interpreted strictly.

92.      Since the Directive tries to maintain a certain balance between the obligations of the various parties to a contract, (29) certain obligations follow from Article 3 of the Directive for both the consumer and the seller when goods are not in conformity.

93.      The consumer, for his part, must give the seller sufficient opportunity to bring the goods into conformity. To that end, a positive action on behalf of the consumer is required. To begin with, the consumer must have informed the seller of the lack of conformity of the goods in question and of his choice of remedy under Article 3(3) of the Directive (repair or replacement). In addition, the consumer must make the goods not in conformity available to the seller.

94.      The seller, on the other hand, must complete any repair or replacement within a reasonable time and without any significant inconvenience to the consumer. The seller may only refuse to do so where this is impossible or disproportionate. (30)

95.      The consumer may only require a reduction of the price or have the contract rescinded if the seller fails to perform his obligations under Article 3. As mentioned above, if the lack of conformity of the goods in question is only minor, rescission is not possible at all.

96.      In the present case, the referring court is faced with the question whether the consumer has fulfilled his obligations under Article 3, and may therefore rescind the contract, where it is not clear at what place the goods must be made available to be brought into conformity.

97.      Not all the details of the interactions between the consumer and the seller are clear from the reference from the Amtsgericht Norderstedt (Local Court, Norderstedt). It seems, however, that the parties did not discuss where the goods should be made available to be brought into conformity. It appears from the file that the consumer merely requested that the goods be brought into conformity at his place of residence. The seller, on the other hand, only stated for the first time in the course of the proceedings before the referring court that the goods should have been made available at its place of business.

98.      It seems to me that the consumer has thereby fulfilled his obligations under Article 3. As the Court stated in Faber, the obligation imposed on the consumer cannot go beyond that of informing the seller that a lack of conformity exists. In view of the consumer’s weak position vis-à-vis the seller as regards the information relating to the qualities of the 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. (31)

99.      By contrast, based on the information provided by the referring court, it seems that the seller, in those circumstances, has not fulfilled its obligations under Article 3. The obligation to complete the remedy within a reasonable time, in my opinion, entails that any steps necessary to complete the remedy must also be completed within a reasonable time, provided the consumer has clearly communicated that there is a lack of conformity, including a certain number of particulars relating to the nature of the goods in question, the contractual terms agreed, and the way in which the alleged lack of conformity became apparent. (32)

100. In those circumstances, a situation where the seller merely maintains, vis-à-vis the consumer, that the goods in question are in conformity and does not undertake any steps to at least inspect the goods, in my view, is to be equated to complete inaction and cannot amount to fulfilling the obligations under Article 3 of the Directive. At the very least, the seller would be required to inform the consumer, within a reasonable time, where the goods must be made available to be brought into conformity. As the seller is acting in the course of his profession, he is more likely to know where the goods must be made available to be brought into conformity.

101. Accordingly, in the case before the referring court, the period within which the goods should have been brought into conformity must be considered to have commenced.

102. However, an essential prerequisite to exercise any of the rights under Article 3 of the Directive is that the goods are not in conformity at the time they were delivered. As there is a presumption under the Directive that goods are in conformity, (33) it must still be proven that the goods are not in fact in conformity with the contract before the consumer can rescind the contract. (34)

103. Therefore, the answer to the fifth and sixth questions referred must be that the consumer is entitled to rescind a contract for the sale of consumer goods where the seller has not undertaken any steps, including providing information on where the goods must be made available to be brought into conformity, by means of one of the remedies under Article 3(3) of the Directive, unless the lack of conformity is only minor or has not been demonstrated.

IV.    Conclusion

104. In light of the foregoing considerations, I propose that the Court reply to the questions referred by the Amtsgericht Norderstedt (Local Court, Norderstedt, Germany) as follows:

The third subparagraph of Article 3(3) 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 is to be interpreted as meaning that the place where a consumer must offer goods acquired under a distance contract to an undertaking in order to enable repair or replacement is to be determined by the national court in the light of all the relevant circumstances of the case before it. In that regard, the place where the goods must be made available must be such as to ensure repair or replacement free of charge, within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.

It is not precluded by the first subparagraph of Article 3(3) of Directive 1999/44, in conjunction with Article 3(4) thereof, for a consumer to have to advance the costs of outward and/or return shipping, as long as this does not amount to a financial burden which dissuades the consumer from asserting his rights

The third subparagraph of Article 3(3) of Directive 1999/44, in conjunction with the second indent of Article 3(5) thereof, is to be interpreted as meaning that a consumer who has notified a defect to the seller is entitled to have the contract rescinded where the seller has not taken any steps, including providing information on where the goods must be made available to be brought into conformity, by means of one of the remedies under Article 3(3) of Directive 1999/44, unless the lack of conformity is only minor or has not been demonstrated.

1      Original language: English.

2      Directive of the European Parliament and of the Council of 25 May 1999 (OJ 1999 L 171, p. 12).

3      See judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 35 and the case-law cited.

4      See judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 36 and the case-law cited.

5      See recital 2 of the Directive, as well as Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees (COM(95) 520 final), p. 1 et seq.

6      Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees, p. 7.

7      See, to that effect, judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraphs 57 to 60.

8      See Article 8(2) of the Directive as well as judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 60 and the case-law cited.

9      See Article 8(1) of the Directive and Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees, p. 6.

10      See, to that effect, judgment of 17 April 2008, Quelle, C‑404/06, EU:C:2008:231, paragraph 41.

11      See, to that effect, judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 72.

12      See judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 52 and the case-law cited.

13      See Article 5(1) of the Directive.

14      See the second subparagraph of Article 3(3) of the Directive.

15      Judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 75.

16      See, by comparison, my Opinion in Kásler and Káslerné RábaiKásler and Káslerné RábaiKásler and Káslerné RábaiKásler and Káslerné RábaiKásler and Káslerné Rábai, C‑26/13, EU:C:2014:85, points 27 to 29 and 105.

17      See judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 46 and the case-law cited.

18      See the second subparagraph of Article 3(3) of the Directive and, to that effect, judgment of 17 April 2008, Quelle, C‑404/06, EU:C:2008:231, paragraph 42. See also judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 58.

19      Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees, pp. 14 and 15.

20      See the third subparagraph of Article 3(3) of the Directive.

21      See, to that effect, judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 53.

22      Cf. judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 46.

23      See, to that effect, by way of example, judgment of 25 July 2018, Dyson, C‑632/16, EU:C:2018:599, paragraph 56 (on unfair commercial practices), and judgment of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 47 (concerning unfair contract terms).

24      See judgment of 17 April 2008, Quelle, C‑404/06, EU:C:2008:231, paragraph 31.

25      See judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 61.

26      See judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 46 and the case-law cited.

27      See Article 3(6) of the Directive.

28      See also, to that effect, judgment of 16 June 2011, Gebr. Weber and PutzGebr. Weber and PutzGebr. Weber and Putz, C‑65/09 and C‑87/09, EU:C:2011:396, paragraph 72.

29      Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees, p. 7.

30      See Article 3(3) of the Directive.

31      See, to that effect, Article 5(2) of the Directive, read in light of recital 19 thereof. See also judgment of 4 June 2015, Faber, C‑497/13, EU:C:2015:357, paragraphs 62 and 63.

32      See, to that effect, judgment of 4 June 2015, Faber, C‑497/13, EU:C:2015:357, paragraph 63.

33      See Article 2(2) of the Directive.

34      See judgment of 4 June 2015, Faber, C‑497/13, EU:C:2015:357, paragraph 52.

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