We have not yet had a chance to address the CJEU's judgment of 23 May in the case Fülla (C-52/18). As we have mentioned in the comment on the AG Wahl's opinion, Mr Fülla was convinced that a party tent he has ordered on the phone was not in conformity with this order. The trader was disputing this claim, but the main issue of the case was the lack of a proper communication between the parties as to where and on what conditions the goods could be brought into conformity to begin with. Mr Fülla demanded that the tent was brought into conformity at his place of residence and did not offer to return it. The trader expected the goods to be returned, but did not inform of this requirement the consumer nor offered to advance the postage costs for the return of the goods.
As it was mentioned in our previous comment, and following the opinion of AG Wahl, the CJEU also leaves the determination of the place, in which the goods should be brought into conformity, to the discretion of national laws (para. 46). After all, the place has not been specified in the Consumer Sales Directive, except for its provisions requiring that the determination of such a place enabled repair or replacement: free of charge, within a reasonable time and without significant inconvenience to the consumer (para. 32). Therefore, national courts have to take into account these three requirements, as well, in their interpretation of national laws in accordance with EU law (para. 47). The CJEU emphasises that consumers could experience some inconvenience when having to package and deliver goods to a place where they will be brought back into conformity. It just cannot be a significant inconvenience (para. 40). However, due to the character of certain goods (e.g. that are heavy or bulky) a need to send/transport them to a place other than their location with the consumer may automatically constitute a significant inconvenience (para. 43). It is worth to note that the CJEU is not overly concerned with the lack of harmonisation that such a solution would lead to, as the CSD is in any case a minimum harmonisation directive.
When a consumer sends the goods back to a trader, claiming that they are non-conforming, the question arises whether the trader needs to advance the costs of posting the goods back to him. The CJEU considers such an obligation too far-reaching and able to distort the balance of rights and obligations of both parties. The main argument here is that the goods may turn out not to be non-conforming and that advancing such postage costs could also slow down the process of bringing the goods back into conformity (para. 53). Therefore, in general, consumers may only expect that the postage costs will be reimbursed to them after the non-conformity is confirmed by the trader. However, the situation is different if the advance of postage costs would be necessary in order not to prevent the consumer from making use of their rights (para. 55). Therefore, in specific cases where the transport is costly, e.g., traders could be required to advance such costs. We may expect some disputes arising to determine when exactly such a significant inconvenience would arise.
Finally, the CJEU addresses the issue of the hierarchy of remedies. As a consumer may only then terminate the contract due to non-conformity if a trader was first given an opportunity to remedy that non-conformity, the question was whether in a given case this condition was fulfilled. After all, Mr Fülla did not deliver the tent to the trader's place of business. The CJEU answers this in the affirmative. As the consumer notified the trader of the non-conformity and of the fact that the repair/replacement could occur at his home, when the transport of goods was likely to cause a significant inconvenience to consumers, and the trader did not inform the consumer about his requirement for the place at which repair/replacement could occur - the consumer could terminate the contract on the basis of the non-conformity (para. 65).
