Tuesday, 18 May 2010

Installation at own risk - opinion of AG in ECJ case C-65/09 Gebr. Weber and C-87/09 Putz

18 May 2010: ECJ Advocate General's opinion in case C-65/09 Gebr. Weber and in case C-87/09 Putz

The AG considered two similar German cases today both concerning interpretation of the provision of Article 3 of the Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees.

Article 3 of the Directive establishes the system of liability of the seller for non-conformity of the goods he had delivered to the consumer. In accordance with that Article 3 the consumer may demand repair or replacement of the defective goods free of charge and without significant inconvenience, unless this is impossible or disproportionate. The consumer may demand price reduction or terminate the contract in case he is not entitled either to repair or to replacement.

Mr Wittmer bought polished Italian-manufactured floor tiles at a price of EUR 1.382,27 from Weber which he had laid in his house. Subsequently, shading appeared on the surface of the tiles, visible to the naked eye. The marks could not be removed, so that the only remedy possible was complete replacement of the tiles. The costs for this were estimated by the expert at EUR 5.830,57 (delivery of new, free of fault tiles, removal of old faulty tiles, installation of new tiles).

Ms Putz purchased a dishwasher from Medianess which the company had delivered to the door of her house. After Ms Putz had the dishwasher installed, a defect became apparent, which was not attributable to the installation but to the machine itself. Removal of the defect was not possible, so Ms Putz requested not only delivery of a dishwasher free from defects, but also disconnection of the defective machine in her kitchen and installation of the new one.

In both above-described cases the main question asked by the German courts to the ECJ was whether the consumer may require the seller to bear the costs of removing goods not in conformity, when the goods had been properly installed and connected by the consumer after the delivery.

The AG is of the opinion that this is not the case:

'the provisions of Article 3(2) and (3) of the Directive are to be interpreted as meaning that where a consumer product, such as the dishwasher at issue, which has been, in a manner consistent with its nature and purpose, installed and connected by the consumer, is brought into conformity by way of replacement, the seller is not required to bear the costs of disconnecting/removing the product not in conformity and of installing/connecting the product free from defects, if under the contract of sale concerned the seller was not obliged to install the purchased product' (Par. 68 in Putz and Par. 67 in Weber)

The AG mentions that the literal interpretation of the Article 3 of the Directive is not conclusive. Some language versions seem to suggest that the 'replacement' would cover also the removal of the defective goods, while other language versions refer only to 'replacement' as replacement-delivery. (Par. 44 in Weber, Par. 45 in Putz) However, on the basis of the contextual and systematic interpretation of the Directive the AG comes to a conclusion that the rights of the consumer to subsequent performance are limited by obligations contracted under a sale contract. (Par. 45-54 in Weber, Par. 46-55 in Putz) This means that:

'the rights afforded to consumers under Article 3 of the Directive are aimed at remedying the lack of conformity by comparison with what was originally owed to the consumer under the contract of sale, namely to bring the consumer into possession of goods free from defects' (Par. 54 in Weber, Par. 55 in Putz)

If the seller was to be held responsible for removal of the defective good, the seller's liability would then extend to circumstances which occurred after the passing of the risk to the consumer, which are therefore dependent on his will and the use the consumer makes of the goods concerned. (Par. 56 in Weber, Par. 57 in Putz)

'Whereas the range of possible ‘normal’ uses that can be made of highly specified and finished goods, like, for example, a computer or a table, may be quite defined and foreseeable, the simpler the goods, the greater the range of possible ‘normal’ uses. Thus, the closer the goods come to a building component or a raw material, the more numerous and undefined are the purposes for which they may be used, still in accordance with their nature. Accordingly, the costs of removing one and the same product may vary enormously.' (Par. 63 in Weber, Par. 64 in Putz)

The AG considers also the obligation of the seller to perform the remedy 'free of charge' and 'without significant inconvenience to the seller' as applying only to bringing the goods into conformity by replacement. (Par. 65 in Weber, Par. 66 in Putz)

In both cases AG's opinion leaves no doubts that the in case the seller was not obliged under a contract of sale to perform installation of the original defective good, he should not be charged with the installation of the new conform good nor with the cost of removal the old, defective one. He may rest assured that simple delivery of the new, conform good would be sufficient under the provisions of the Directive.

Does this, however, sufficiently protect the consumers? The Commission, and a few other governments, were here of the opinion that that is not the case. They argued that:

'the repair or replacement to which the consumer is entitled under Article 3(3) of the Directive refers necessarily to the goods not in conformity in the state and environment at the time when the lack of conformity occurs. It follows that if the goods not in conformity have been, in a manner consistent with their nature and purpose, incorporated into another thing, the goods not in conformity constitute, in that state, the object of repair or replacement. Thus, the consumer has, by means of replacement, to be put into a situation in which he would have been if goods free of defects had been delivered to him, which means that, if necessary, the goods not in conformity have to be removed and the goods free of defects installed' (Par. 41 in Weber)

While it is a view more consumer-friendly, I do believe it would extend the consumer protection a bit too far. While it is true that the consumers counted only on having to pay the costs of installation of the goods once, all the additional damage that they may suffer as a result of the non-conform goods that they had used, they are mostly likely able to claim from the seller on the basis of other national liability provisions.

It is important to mention that in Weber case another point was briefly considered by the AG. Namely, whether under the Article 3 of the Directive the seller may be obliged to bear disproportionate costs for one of the remedies that the consumer has in case of non-conformity of the goods, when the other 'primary' remedy is unavailable. (Par. 70 in Weber)

The AG claims that:

'In my view it follows clearly from that provision that that proviso applies to any remedy at ‘primary level’ so that, whether the consumer chooses repair or replacement, the remedy must in either case be both possible and proportionate, failing which the seller can refuse the primary remedies and the choice of the consumer is restricted to price reduction or rescission.' (Par. 81 in Weber)

'If the Directive were indeed, in accordance with such an interpretation, to be understood as meaning that the consumer could choose, where – as in the circumstances of the main proceedings – one of the two primary remedies referred to in Article 3(3) of the Directive was impossible, the other remedy whether or not it was proportionate, the application of the subsidiary remedies of price reduction or rescission, pursuant to Article 3(5), first indent, of the Directive, would obviously be very limited, namely to cases where both repair and replacement are impossible.' (Par. 84)

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