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

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 9 March 2023 (1)

Case C‑133/22

LACD GmbH

v

BB Sport GmbH & Co. KG

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Reference for a preliminary ruling – Consumer protection – Directive 2011/83/EU – Point 14 of Article 2 – Directive (EU) 2019/771 – Point 12 of Article 2 – Distance contract between a consumer and a trader – Commercial guarantee concerning aspects or requirements not related to the conformity of the product – Undertaking by the producer to take back and make reimbursement for goods, without any time limit, solely because the purchaser is dissatisfied)

1.        ‘Satisfaction or your money back!’ While that catchy advertising slogan is a well-known and widely used promotional technique, this case raises the question whether it can form the subject of a commercial guarantee within the meaning of point 14 of Article 2 of Directive 2011/83/EU (2) and of point 12 of Article 2 of Directive (EU) 2019/771. (3)

 Legal framework

 European Union law

2.        The relevant provisions in this case are point 14 of Article 2 of Directive 2011/83 and point 12 of Article 2 of Directive 2019/771.

 German law

3.        Under Paragraph 443(1) of the Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’), a guarantee is established where the seller, the manufacturer or another third party enters into a specific obligation, in a statement or relevant advertising made at the time of the conclusion of the contract of sale or before its conclusion, in addition to his or her statutory obligations relating to the guarantee of conformity, to reimburse the purchase price, to replace or repair the goods or to provide any other service in connection with the goods 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.

4.        Paragraph 479(1) of the BGB provides that a guarantee statement, within the meaning of Paragraph 443 of that code, is to be worded in plain, intelligible terms and lists the elements which that statement must include.

 Facts at the origin of the dispute, the main proceedings and the questions referred for a preliminary ruling

5.        In addition to sales activities carried out in its own online shop, LACD GmbH distributes, via retailers and online merchants, sports and fitness items, which it manufactures itself, under the brand LACD. It attached hangtags to its T-shirts bearing the following text:

‘LACD Warranty

Every LACD product comes with our lifetime guarantee. If you are not completely satisfied with any of our products, please return it to the specialist dealer from whom you purchased it. Alternatively, you can return it to LACD directly but remember to tell us where and when you bought it.’

6.        In August 2018, BB Sport GmbH, which also sells, in its online shop, sports and fitness items, purchased through a ‘mystery’ shopper, from the undertaking Outdoor-Works, which is present on the Amazon Marketplace online trading platform, two LACD brand T-shirts to which hangtags bearing the statement reproduced in the previous point were attached.

7.        Taking the view that the information appearing on those tags did not satisfy the statutory requirements applicable to a guarantee statement, within the meaning of Paragraphs 443 and 479 of the BGB, BB Sport brought an action before the Landgericht München I (Regional Court, Munich I, Germany), for which provision is made in competition law, seeking an injunction preventing LACD from attaching such tags to its clothing products. Following that court’s dismissal of its action, BB Sport lodged an appeal before the Oberlandesgericht München (Higher Regional Court, Munich, Germany), which upheld it.

8.        LACD then lodged an appeal on a point of law before the referring court, which considers that the outcome of the dispute turns on the interpretation of point 14 of Article 2 of Directive 2011/83 and of point 12 of Article 2 of Directive 2019/771.

9.        That court observes that the action brought by BB Sport can succeed only if the conduct of which LACD is accused is classified as an ‘unfair commercial practice’. In addition, the finding of a breach, by LACD, of the information requirements laid down in Paragraph 479(1) of the BGB and, consequently, of the existence of such a practice presupposes, according to the referring court, that the undertaking to take back the clothing product if the consumer is dissatisfied, contained in the LACD statement, constitutes a ‘guarantee’ within the meaning of Paragraph 443(1) of the BGB – a provision which transposed into German law Article 1(2)(e) and Article 6(1) of Directive 1999/44/EC, (4) and which, since 1 January 2022, has had its basis in point 12 of Article 2 of Directive 2019/771.

10.      The referring court considers that, even if ‘the consumer’s satisfaction with the product purchased’ does not fall under the ‘specifications of the item sold’, it could, nevertheless, constitute ‘another requirement not related to conformity’, within the meaning of Paragraph 443(1) of the BGB. It explains that that criterion was added to that provision of the BGB on 13 June 2014, with a view to transposing the concept of a ‘commercial guarantee’ contained in point 14 of Article 2 of Directive 2011/83 and that, therefore, that provision of national law should be interpreted in accordance with that article.

11.      In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Can any other requirements not related to conformity set out in the guarantee statement within the meaning of point 14 of Article 2 of [Directive 2011/83] and any other requirements not related to conformity within the meaning of point 12 of Article 2 of [Directive 2019/771] apply where circumstances specific to the consumer, in particular his or her subjective attitude towards the item purchased (in this case, the consumer’s personal satisfaction with the item purchased), have a bearing on the guarantor’s obligation, without it being necessary that those personal circumstances relate to the condition or features of the item purchased?

(2)      If Question 1 is answered in the affirmative:

Must it be possible to establish the absence of requirements based on the circumstances specific to the consumer (in this case, the consumer’s satisfaction with the goods purchased) in the light of objective circumstances?’

 Procedure before the Court

12.      The applicant and the defendant in the main proceedings and the European Commission submitted written observations.

 Determination of the relevant legal framework

13.      Examination of the request for a preliminary ruling raises a preliminary question concerning the determination of the relevant legal framework. Whereas the referring court asks the Court to interpret certain provisions of Directives 2011/83 and 2019/771, the applicant in the main proceedings submits that the first question referred for a preliminary ruling is ‘inadmissible’ in so far as it concerns the first one of those directives, since the instrument applicable at the time of the alleged breach was Directive 1999/44. As for the Commission, it proposes that that question be reworded to omit the reference to Directive 2019/771, which was inapplicable ratione temporis. It must be observed that this case does indeed unearth several strata of legislation, requiring the court to undertake archaeological excavations of the law that should enable it to resolve the issue raised by the succession of rules.

14.      It is important to note, in the first place, that, on the date on which the goods at issue were purchased online, Directives 1999/44 and 2011/83 were in force, the former having been repealed by Directive 2019/771 only with effect from 1 January 2022. Directive 1999/44 on contracts for the sale of consumer goods (5) was primarily intended to impose on the seller an obligation to deliver to the consumer goods which are in conformity with the contract of sale and to be liable for any lack of conformity at the time those goods were delivered. Contractual terms, such as the conformity criteria, the remedies available in the event of a lack of conformity with the contract and the primary modalities for their exercise, have seen minimal harmonisation.

15.      Taking note of the common practice of sellers or producers to provide a guarantee for goods against any defect which may become apparent within a certain period, Directive 1999/44 also contained provisions devoted to that concept of a ‘guarantee’, defined in Article 1(2)(e) thereof as ‘any undertaking by a seller or producer to the consumer, given without extra charge, to reimburse the price paid or to replace, repair or handle consumer goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising’. Article 6 of Directive 1999/44 laid down, in turn, the legal rules governing that guarantee, which complemented the consumer’s statutory rights as regards the conformity of the goods with the contract of sale, requiring the communication of certain information in order to ensure that the consumer is not misled. (6)

16.      Directive 1999/44 was amended by Directive 2011/83, (7) the provisions of which apply to contracts concluded after 13 June 2014, (8) and which harmonises the rules on the information to be provided, in particular for distance contracts and off-premises contracts. Pursuant to point 7 of Article 2 of Directive 2011/83, a distance contract is defined as ‘any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’. Here, the clothing items were purchased from the undertaking Outdoor-Works, which is present on the Amazon Marketplace online trading platform. This clearly constitutes a distance sales contract. (9)

17.      The harmonisation in relation to pre-contractual information thus brought about also concerns the ‘commercial guarantee’, newly defined in point 14 of Article 2 of Directive 2011/83 as ‘any undertaking by the trader or a producer (the guarantor) to the consumer, in addition to his or her 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’.

18.      Directive 2011/83 cannot, in my view, be regarded as a lex specialis as compared with Directive 1999/44, in the absence of a relationship between those instruments of special provisions derogating from the general rules in the same field of contracts for the sale of consumer goods. However, its new definition of the commercial guarantee must, on its own, be adopted with a view to providing an answer to the question put by the referring court in accordance with the principle of the succession of legal rules (lex posterior derogat legi priori), which forms the basis of the primacy of Directive 2011/83 over Directive 1999/44 as regards the commercial guarantee in distance sales contracts.

19.      In addition to the chronological order of those acts of secondary law, a further argument in favour of taking into consideration only Directive 2011/83 is the full harmonisation vis-à-vis the provision of pre-contractual information to consumers brought about by that directive (10) and the fact that point 14 of Article 2 of Directive 2011/83 defining a commercial guarantee cannot be separated from Article 6 of that directive on the requirements to provide information to consumers. (11) I note, in that regard, that the 2011 legislature incorporated, into the definition of the commercial guarantee, the autonomous nature of that guarantee from the statutory guarantee previously contained in Article 6(2) of Directive 1999/44, clarified the scope of the first guarantee by distinguishing its potential dual object and imposed an obligation to provide information relating to the statutory guarantee of the conformity of the goods and the existence of commercial guarantees as well as the ‘conditions of [those guarantees]’, a generic form of words differing from that used in the abovementioned article.

20.      It should be recalled, in the second place, that Directive 1999/44 was repealed with effect from 1 January 2022 and replaced by Directive 2019/771, which applies to contracts concluded from 1 January 2022, in accordance with the first sentence of Article 23 and Article 24(2) thereof, noting that the T-shirts at issue were purchased in August 2018. The referring court does not, however, request the Court’s interpretation of point 12 of Article 2 of Directive 2019/771, and asserts that the application for an injunction prohibiting an unfair commercial practice, based on the risk of recurrence, made by BB Sport can be upheld only if the conduct of which LACD is accused is contrary to competition law both at the time of the facts and on the date of the decision of the court hearing the appeal on a point of law.

21.      It must be observed that, in a case relating to identical main proceedings, the Court opted to interpret the rules of EU law applicable ratione temporis to the delivery of the appeal judgment, notwithstanding the finding that the facts at the origin of the dispute in the main proceedings had occurred before those rules were adopted.

22.      The Court, first, recalled its case-law that, from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive. Here, such an obligation to refrain was applicable, at the very least, when the order for reference was made, namely on 10 February 2022, by which date not only had Directive 2019/771 entered into force, but the period for its transposition, which ended on 1 July 2021, had expired. Next, it found that, in any event, it followed expressly from the order for reference, as in the present case, that the outcome of the appeal on a point of law was dependent on whether the injunction at issue could be applied for on the basis of the law applicable at the time at which, following the delivery of the preliminary ruling, the decision ruling on the dispute in the main proceedings would be given, inasmuch as that application related also to future breaches. In those circumstances, the interpretation of Directive 2019/771 sought by the referring court must be regarded as being capable of being useful to that court for the purpose of enabling it to rule in the case before it. (12)

23.      I note, in that regard, that, according to recital 11 of Directive 2019/771, that directive complements Directive 2011/83 by introducing rules on the conformity of goods, the remedies in the event of a lack of conformity and modalities for their exercise. Furthermore, recital 62 of Directive 2019/771 states that, in order to ensure that there is transparency, certain requirements as regards commercial guarantees should be provided, alongside the pre-contractual information requirements on the existence and conditions of commercial guarantees set out in Directive 2011/83. In that context, point 12 of Article 2 of Directive 2019/771 defines a commercial guarantee as ‘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’.

24.      It can be deduced from all the foregoing considerations that the answer given by the Court must relate to point 14 of Article 2 of Directive 2011/83 and point 12 of Article 2 of Directive 2019/771.

 The questions referred

25.      By its two questions referred for a preliminary ruling, which should be dealt with together, the referring court seeks, in essence, to ascertain whether point 14 of Article 2 of Directive 2011/83 and point 12 of Article 2 of Directive 2019/771 are to be interpreted as meaning that the concept of a ‘commercial guarantee’ contained therein covers the undertaking by a producer (13) to take back and make reimbursement for (14) goods, without any time limit, solely because the purchaser is dissatisfied with those goods, and, if so, the conditions for implementation of such a guarantee.

26.      According to the Court’s settled case-law, for the purpose of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (15)

 Literal interpretation

27.      It follows from the wording of point 14 of Article 2 of Directive 2011/83, which is recalled in point 17 of this Opinion, that the EU legislature clearly intended to give the concept of a ‘commercial guarantee’ a broad scope.

28.      This is clear, first of all, from the use of the inclusive words ‘any undertaking’ to define the conduct of the trader when addressing, directly or indirectly, the potential purchasers of the products offered for sale. The wording of the aforementioned provision reveals, furthermore, that that guarantee has a dual object: it can apply where the goods acquired do not meet the ‘specifications’ or ‘any other requirements not related to conformity’ set out in the guarantee statement or in the relevant advertising.

29.      To gain a better understanding of the meaning of that alternative, reference must be made to the origin of the provision in question. The proposal for a Directive of the European Parliament and of the Council on consumer rights referred only to the ‘specifications’ set out in the guarantee statement or in the relevant advertising. That term unquestionably refers to the objective concept of the ‘features’ or ‘properties’ of the item sold, which is decisive as regards conformity with the contract, and makes clear that the commercial guarantee, which complements the statutory guarantee of conformity, can take the form of an extension of the latter guarantee.

30.      In the course of the legislative process, and following an amendment by the Parliament, a second possible object was added, the wording of which explicitly departs from the first and which defines, by contrast to that object, a relationship to the goods not related to any lack of conformity. The neutral and general expression ‘any other requirements’ can clearly cover the non-satisfaction of the customer’s subjective expectations vis-à-vis the product acquired, irrespective of any objective consideration related to the features or properties of that product. Analysis of different language versions of point 14 of Article 2 of Directive 2011/83, in particular the German, English and Italian language versions, reveals the use of terminology – the words ‘Anforderungen’, ‘requirements’ and ‘requisito’ respectively – which corresponds to the concept of ‘requirements’, which seems to me to be a more fitting way of conveying the concept of a commercial guarantee potentially covering the consumer’s dissatisfaction with the goods purchased.

31.      It is also interesting to note that the definition of the concept of a ‘commercial guarantee’ contained in point 14 of Article 2 of Directive 2019/771 is worded, inter alia in the French and Spanish versions, in virtually identical terms to those of point 12 of Article 2 of Directive 2011/83; the relevant amendment for the purposes of this analysis specifically concerns the replacement of the expression ‘d’autres éléments éventuels’ (‘any other aspects’) with ‘d’autres spécifications éventuelles’ (‘any other requirements’) not related to conformity.

32.      Finally, it should be observed that those other aspects or requirements are expressly described, in those language versions, as ‘éventuels’ (‘possible’) and to be set out in the guarantee statement or in the relevant advertising, the content of which is exclusively a matter falling within the responsibility of the trader. This is entirely consistent with the latter’s exercise of his or her freedom to conduct a business and his or her ultimate choice as regards the nature and the scope of the commercial guarantee attached to the products sold.

33.      It thus appears that neither the wording of point 14 of Article 2 of Directive 2011/83 nor that of point 12 of Article 2 of Directive 2019/771 is such as to exclude the possibility of a manufacturer offering a separate guarantee not for the product itself but for the requirements related to that product’s conformity with the contract of sale, in the form of an unconditional promise to take back the product and to make reimbursement if the purchaser proved to be dissatisfied with that product.

 Teleological interpretation

34.      As is apparent from Article 1 of Directive 2011/83, read in the light of recitals 4, 5 and 7 thereof, that directive seeks to provide a high level of consumer protection by ensuring that consumers are informed and secure in transactions with traders. Moreover, the protection of consumers within EU policies is set out in Article 169 TFEU and in Article 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (16) That is also the objective of Directive 2019/771, as is confirmed by recitals 2, 3, 5 and 10 and Article 1 of this directive, and recital 62 of that directive specifies that, although Member States are free to lay down rules on aspects of commercial guarantees not covered by that directive, those rules must not deprive consumers of the protection afforded to them by that instrument in that field.

35.      In addition, taking the view that the undertaking by a trader concerned solely with the personal satisfaction of the consumer vis-à-vis the item sold can fall within the material scope of Directive 2011/83 and that of Directive 2019/771 in connection with the commercial guarantee contributes, within the context of the internal market which those acts seek to ensure operates effectively, to a high level of consumer protection.

36.      Besides a possible extension of the statutory guarantee of conformity, the consumer will thus be granted additional rights that have binding force vis-à-vis the trader. Such recognition will mean giving effect to the requirements to provide information in relation to distance contracts, information which is provided before the conclusion of a contract, about the terms of the contract and the consequences of concluding it, which is of fundamental importance for a consumer. (17) Indeed, it is on the basis of that information that the consumer decides whether he or she wishes to be contractually bound to the trader. The requirement to provide information laid down in Article 6(1) and Article 8(1) and (4) of Directive 2011/83 means that the consumer receives, in an appropriate way, before the distance contract is concluded, the information needed to enable him or her to decide whether or not to conclude the contract, thereby meeting the legitimate objective in the public interest of consumer protection, in accordance with Article 169 TFEU and recalled in recital 3 of that directive, without, however, affecting the essence of the freedom of expression and information or the freedom to conduct a business, as enshrined in Articles 11 and 16 of the Charter. (18)

37.      An interpretation contrary to that proposed could, by contrast, jeopardise the objective of consumer protection, it being recalled that, in that field, it is necessary to take account of the presumed expectation of the average consumer, who is reasonably well informed and reasonably observant and circumspect. (19) It appears to me that, faced with a commercial practice based on a slogan of the kind ‘satisfaction or your money back’, which is effective in attracting consumers’ attention but insidious because it gives them the impression that they have a genuine warranty claim that is enforceable against the trader, the average consumer would be inclined, spurred on by the latter consideration, to decide to enter into a contract. As the Commission points out, misleading consumers about their rights could constitute, pursuant to Article 6(1)(g) of Directive 2005/29/EC, (20) an unfair – and therefore prohibited – commercial practice.

38.      The only way to provide legal certainty in contractual relations between traders and consumers is to introduce, into the scope of the commercial guarantee, the satisfaction of the subjective expectations of those consumers vis-à-vis the item sold. It is important to note, in that regard, that recital 7 of Directive 2011/83 and recital 5 of Directive 2019/771 make clear that those two instruments share the same objective of increasing the legal certainty of contracts of sale entered into between traders and consumers, which can also reinforce the trust between those parties. Recital 62 of Directive 2019/771 specifically mentions the concern to improve such certainty and to ‘avoid consumers being misled’ in relation to commercial guarantees.

39.      With regard to the aforementioned freedom to conduct a business, while the Court has held that, in interpreting the provisions of Directive 2011/83, it is necessary to ensure, as is stated in recital 4 of that directive, the right balance between a high level of consumer protection and the competitiveness of undertakings, while respecting the undertaking’s freedom to conduct a business, as set out in Article 16 of the Charter, such a balancing exercise is not relevant in this case, given that the determination of the subject matter and the scope of the commercial guarantee is the very expression of that freedom. (21) It is indeed the seller or the producer who, freely, defines the conditions for implementation of that guarantee and offers it to the consumer as part of his or her commercial strategy, expecting that his or her sales or advertising argument will be effective in improving the competitiveness and the attractiveness of his or her offer in comparison with his or her competitors’ offers and in subsequently increasing the volume of his or her sales, and that few of the goods sold will be returned as a result of his or her customers reconsidering their purchase.

40.      It should be observed, moreover, that a ‘satisfaction or your money back’ undertaking made by a trader is an age-old and particularly wide-spread commercial technique which EU rules have simply regulated in more specific terms over time. That guarantee has itself been surpassed by the ‘satisfied and your money back’ undertaking, which sees a trader offer items for which a refund may be obtained simply on request, without having to be ‘dissatisfied’ with the product.

41.      It should be recalled that, in EU policies, the objective of ensuring a high level of consumer protection has its basis in the fact that consumers are in a weaker position in relation to sellers or suppliers, inasmuch as they must be deemed to be less informed, economically weaker and legally less experienced than their opposite parties. (22) Traders are thus perfectly able to understand the legislative framework governing their consumer-oriented activities and therefore to determine the scope of a commercial undertaking, which complements the statutory guarantee of conformity and is binding on them in its entirety, in respect of which the EU legislature logically did not provide for any protection for traders.

42.      In that regard, it is my view that the objective of sparing traders from disproportionate disadvantages connected with certain situations, an objective adopted by the legislature (23) and put into effect by the Court in its case-law, (24) is without merit in a situation in which the individual concerned determines, freely and in full knowledge of the facts, the binding undertaking which he or she enters into vis-à-vis the consumer, having previously considered the potential financial implications of that undertaking. I note with interest that the Court has held that, where the trader expressly draws the consumer’s attention to the existence of a manufacturer’s commercial guarantee for sales or advertising purposes and, accordingly, to improve the competitiveness and attractiveness of its offer in comparison with its competitors’ offers, the information requirement in Article 6(1)(m) of Directive 2011/83 is intended to apply. It went on to clarify that such an information requirement cannot be regarded as constituting a disproportionate burden for the trader, since the trader itself decides, in full knowledge of the facts, to draw the consumer’s attention to the guarantee and intends to derive a competitive advantage from it. (25)

43.      In those circumstances, it appears to me that an interpretation to the effect that accepting that the undertaking by a trader concerned solely with the personal satisfaction of the consumer vis-à-vis the item sold can form the subject of a commercial guarantee is consistent with the objective of EU law of striking the right balance between a high level of consumer protection and the competitiveness of undertakings.

 Contextual interpretation

44.      In my view, the contextual analysis supports my proposed interpretation of the commercial guarantee. After all, the inclusion within the scope of that guarantee of an offer to take back and make reimbursement for goods sold, without any time limit, in the event the purchaser is dissatisfied appears to be an extension of the right of withdrawal afforded to consumers by Directive 2011/83.

45.      Thus, Article 9 of that directive provides that the consumer may exercise such a right, within a specified period, without penalties and without giving any reason. As for the legal consequences of withdrawal, Article 13(1) of Directive 2011/83 states that ‘the trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery’, with the consumer bearing the direct costs of returning the goods and, in one particular situation, a portion of the delivery costs. (26) Recital 37 of that directive states that the purpose of the right of withdrawal is to protect the consumer in the situation of a distance sale, in which he or she ‘is not able to see the goods before concluding the contract’. The right of withdrawal is therefore intended to offset the disadvantage for the consumer resulting from a distance contract by granting him an appropriate period for reflection during which he or she can examine and test the goods acquired. (27)

46.      The possibility afforded to the consumer, as set out in the guarantee statement or in the relevant advertising, to reconsider and to return goods acquired online, without a time limit and solely because he or she is dissatisfied with the product, simply pushes to the extreme the temporal aspect of the rationale behind the right of withdrawal.

47.      In the light of the foregoing considerations, I propose that the Court find that point 14 of Article 2 of Directive 2011/83 and point 12 of Article 2 of Directive 2019/771 are to be interpreted as meaning that the concept of a ‘commercial guarantee’ contained therein covers the undertaking by a producer to take back and make reimbursement for goods acquired under a distance sales contract, without any time limit, solely because the purchaser is dissatisfied with those goods.

48.      That solution would appear to me to dictate the solution as regards the conditions for implementing such a guarantee. The referring court asks, in that regard, whether the consumer’s dissatisfaction must be established on the basis of objective circumstances. That question must be answered in the negative, since the failure to satisfy the consumer’s subjective expectations as regards the product acquired cannot, by definition, form the subject of an objective analysis, given that the court is unable to probe the inner thoughts of the individual concerned. A mere statement to that effect by the consumer, together with the return of the goods, will be enough.

 Conclusion

49.      In the light of the foregoing considerations, I propose that the Court answer the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:

Point 14 of Article 2 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, and point 12 of Article 2 of 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,

must be interpreted as meaning that the concept of a ‘commercial guarantee’ contained therein covers the undertaking by a producer to take back and make reimbursement for goods acquired under a distance sales contract, without any time limit, solely on the ground of the consumer’s stated dissatisfaction with those goods.

1      Original language: French.

2      Directive of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).

3      Directive 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 (OJ 2019 L 136, p. 28).

4      Directive of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12).

5      Directive 1999/44 applied to all contracts for the sale of consumer goods, including distance contracts, as is made clear at the end of recital 4 of that directive.

6      See recital 21 of Directive 1999/44.

7      In its proposal of 8 October 2008 which led to the adoption of Directive 2011/83 (COM(2008) 614 final), the Commission had proposed replacing four directives, including Directive 1999/44, with a ‘single horizontal instrument’ based on full harmonisation in the field of consumer protection. That approach was rejected by the Council. Ultimately, it is apparent from recital 63 and Article 33 of Directive 2011/83 that the only amendment made to Directive 1999/44 was the insertion into that directive of an Article 8a requiring the Member States to inform the Commission of the adoption of stricter national provisions relating to consumer protection in certain areas.

8      See Articles 28 and 33 of Directive 2011/83.

9      It is established that the products concerned were purchased online from the undertaking Outdoor-Works by a ‘mystery’ shopper, acting on instructions from BB Sport. According to the Court’s case-law, a ‘trader’, within the meaning of point 2 of Article 2 of Directive 2011/83, is not only a natural or legal person who is acting for purposes relating to his or her own trade, business, craft or profession in relation to contracts covered by that directive, but also a natural or legal person who is acting as an intermediary, in the name of or on behalf of that person, since that intermediary and the principal trader may both be classified as ‘traders’ for the purposes of that provision, without there being any need to establish the existence of a twofold provision of services (judgment of 24 February 2022, Tiketa (C‑536/20, EU:C:2022:112, paragraph 36)). I would note, however, that the main proceedings concern an action for an injunction brought against an alleged unfair commercial practice by LACD and that, for the purposes of settling the dispute, the referring court, to which it falls to assess, in the light of the specific circumstances of every case, both the need for a preliminary ruling in order to be in a position to give judgment and the relevance of the questions put to the Court, asks the Court about what can constitute, with respect to an undertaking by a producer, a commercial guarantee within the meaning of Directive 2011/83. Given the presumption of relevance which attaches to questions referred for a preliminary ruling by national courts and tribunals and since it does not appear obvious that the requested interpretation of the provisions of EU law referred to in those questions is divorced from reality or unconnected with the subject matter of the dispute in the main proceedings, the questions submitted by the referring court should be answered.

10      See recitals 5 and 7 of Directive 2011/83, recital 6 of Directive 2019/771 and also judgment of 13 September 2018, Starman (C‑332/17, EU:C:2018:721, paragraph 27).

11      While, in the judgment of 5 May 2022, Victorinox (C‑179/21, EU:C:2022:353), the Court interpreted Article 6(1)(m) of Directive 2011/83 in conjunction with the second indent of Article 6(2) of Directive 1999/44, that was in response to a specific question put by the referring court concerning not the classification of a statement made by the producer as a ‘commercial guarantee’, but rather the potential identity of the information to be provided to the consumer, pursuant to the first provision, about the conditions relating to that guarantee as compared with the information referred to in the second provision. In any case, the application of the principle of lex posterior derogat legi priori and the indivisible harmonised body of rules formed by point 14 of Article 2 and Article 6(1) of Directive 2011/83 render, in my view, a joint interpretation with the relevant provisions of Directive 1999/44 redundant.

12      See, to that effect, judgment of 14 January 2010, Plus Warenhandelsgesellschaft (C‑304/08, EU:C:2010:12, paragraphs 29 to 32).

13      The first question referred for a preliminary ruling refers to the concept of a ‘guarantor’, which encompasses, in – to my mind – more suggestive terms, the definition of ‘producer’ that fits LACD’s situation. For the purpose of the greater clarity of this Opinion, I considered it preferable to use the latter expression and that of a ‘trader’, as distinguished from the concept of a ‘consumer’. In addition, in the judgment of 5 May 2022, Victorinox (C‑179/21, EU:C:2022:353, paragraphs 35 and 36), the Court clarified that, where a manufacturer sells to a consumer – directly or through another person acting in its name and on its behalf – the goods which it produces, it must be considered a ‘trader’ within the meaning of point 2 of Article 2 of Directive 2011/83. Accordingly, the commercial guarantee offered by the manufacturer can only correspond to an ‘undertaking by the trader’ within the meaning of point 14 of Article 2 of that directive, and not to an undertaking ‘by a producer’ within the meaning of that provision. The latter provision refers to a situation in which the trader is not the same person as the manufacturer.

14      The statement made by LACD, as reported in the order for reference, refers only to the possible return of the goods purchased, without any express mention being made of reimbursement for those goods, which appears – at the least – unusual and contradictory in the light of the nature of the commercial guarantee, which is given to ‘reimburse the price paid or to replace, repair or service goods’. Any ambiguity is, however, removed on examination of LACD’s observations, because it stated therein that there is ‘no question that the customer may return the T-shirt at any time, either to the merchant or to LACD, and that the purchase price may be reimbursed to him at the place to which the item is returned’.

15      Judgment of 14 July 2016, Verband Sozialer Wettbewerb (C‑19/15, EU:C:2016:563, paragraph 23).

16      Judgment of 7 April 2022, Fuhrmann-2 (C‑249/21, EU:C:2022:269, paragraph 21).

17      Judgment of 13 September 2018, Wind Tre and Vodafone Italia (C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 46).

18      Judgment of 23 January 2019, Walbusch Walter Busch (C‑430/17, EU:C:2019:47, paragraphs 36 and 42).

19      Judgment of 21 January 2016, Viiniverla (C‑75/15, EU:C:2016:35, paragraph 25).

20      Directive of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

21      See, to that effect, judgment of 7 April 2022, Fuhrmann-2 (C‑249/21, EU:C:2022:269, paragraph 31).

22      Judgment of 14 May 2020, NK (Individual house project) (C‑208/19, EU:C:2020:382, paragraph 39).

23      See second subparagraph of Article 3(3) of Directive 1999/44 and Article 13(2) and (3) of Directive 2019/771.

24      See, inter alia, judgments of 16 June 2011, Gebr. Weber and Putz (C‑65/09 and C‑87/09, EU:C:2011:396, paragraphs 58 and 73); of 23 May 2019, Fülla (C‑52/18, EU:C:2019:447, paragraphs 52 to 54); and of 12 March 2020, Verbraucherzentrale Berlin (C‑583/18, EU:C:2020:199, paragraphs 31 and 36).

25      Judgment of 5 May 2022, Victorinox (C‑179/21, EU:C:2022:353, paragraphs 45 and 46).

26      Article 9 of Directive 2011/83, which refers to Article 13(2) and Article 14 thereof.

27      See, by analogy, judgment of 3 September 2009, Messner (C‑489/07, EU:C:2009:502, paragraph 20) in relation to Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19).

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