Friday, 7 April 2017

Liability and limitation periods - AG Szpunar in Ferenschild (C-133/16)

AG Szpunar issued his opinion today in the case Ferenschild (C-133/16) concerning interpretation of liability and limitation periods in the Consumer Sales Directive.

Mr Ferenschild bought a second-hand car (what else?) in Belgium, which inevitably concluded with him raising non-conformity claims. Somewhat less common is the fact that the non-conformity claim would in some Member States classify as a legal defect of the purchased goods, as the car could not be registered for 6 months after the delivery (and, therefore, could not be used for its normal purpose), due to its documents being used as a cover for a stolen vehicle. Mr Ferenschild claimed this non-conformity and as remedies demanded price reduction, as well as compensation for the replacement goods (renting another car prior to the registration) and damages resulting from this non-conformity. The preliminary question addresses the issue whether this claim has been raised timely. 

The Consumer Sales Directive in its article 5(1) introduces two deadlines: a two year period for the liability of the seller for the lack of conformity of the goods with the contract (first sentence) and a two year limitation period for raising such liability claims (second sentence). AG Szpunar distinguishes between these two periods and considers them independent of one another. The justifications to keep these periods separate are: linguistic (par. 65), structural and historical. The structural argument is based on the fact that the limitation period for raising the claim does not start running from the moment consumers find out about the lack of conformity of the goods. Instead, it starts running already from the moment of the delivery of goods, limiting sellers' exposure (par. 53-54). The historical argument looks into the inspiration for this provision - provisions in the CISG (par. 57-58) - as well as the original draft of the directive (par. 67-69).

It is important to differentiate between these two periods because the Directive allowed in its Article 7(1) for the Member States to facilitate contractual limitation of the period for the liability of the seller of second-hand goods. If these two periods can, therefore, be kept apart, as AG Szpunar suggests, then the Member States would only be able to allow parties to limit the period of liability of the seller for non-conforming goods to one year, but consumers could continue to raise such claims within two years from the moment of the delivery (par. 72). This is the interpretation that the AG Szpunar prefers in order to 'safeguard the minimum model of consumer protection guaranteed by EU law' (par. 104). This seems consistent with the general aim of the CSD to balance consumers' and sellers' interests (par. 81). The nature of second-hand goods suggests the need to narrow down the period for the liability of the seller for non-conforming goods (par. 98), but that should not then also impact consumers' legal remedies (par. 87, 92).

Other interesting comments from the opinion pertain to: CSD not introducing a clear distinction between liability for non-conforming with the contract goods and liability for hidden defects, with both classifying as non-conformity (par. 36); high probability of the CSD applying also to legal defects (par. 38-40).

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