Tuesday, 18 December 2018

2019 forecast: Sun shines on consumer sales contracts

Over a week ago, on December 7, the Council has announced reaching an agreement on the revision of the sales of goods directive (Consumer Sales Directive 1999/44/EC) (More unified rules on contracts for the sales of goods: Council agrees its position). This means that there is a chance for the European Parliament to adopt the new Directive before the elections. The first reading has now been scheduled for March 2019.
The original proposal of the Commission intended to provide separate remedies for non-conformity of products purchased at a distance and of digital content. Due to the opposition to this further fragmentation of consumer protection rules, the proposal has, however, been adopted and the amended new rules would regulate non-conformity in all sales contracts. The Council welcomed this change. If we (and the EP) follow the Council's general approach, which may be read here in more details, this is what we may expect:

Harmonisation level
The new rules would apply targeted maximum harmonisation, with Member States being able to maintain further reaching consumer protection in respect of: time limits for guarantee periods (with the minimum set at 2 years); the reversal of the burden of proof for non-conformity (if it manifests within one year from the moment of the delivery there will be a presumption of non-conformity, but the Member States may extend this time period to two years); allowing consumers to choose a specific remedy if the lack of conformity became apparent within a short period after delivery, no longer than 30 days; maintaining flexibility on adoption of the obligation to notify about non-conformity within two months from detecting it. 
Goods with digital elements
IoT or connected goods (goods with digital elements) will be regulated by this new directive rather than the directive on digital content. Sellers will be obliged to provide updates for goods with digital elements but only for a period of two years (whilst digital content not integrated in goods will need to be updated during a time that consumers may 'reasonably expect').
Consumer remedies for lack of non-conformity will remain the same (repair, replacement, price reduction and termination) but the strict two tier system has been mellowed down by the introduction of a more detailed exceptions allowing sellers to opt for price reduction or termination instead of specific performance. New provisions account for CJEU's case law stating that consumers should not be liable to pay for the normal use of goods during the period prior to their replacement, as well as that they are not to bear the costs of removal of installed non-conforming goods and the re-installation of the conforming goods.

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