AG Wahl on 99/44 Directive: if it looks like the right place, it is the right place (C-52/18).

Today, AG Wahl delivered his opinion in case C-52/18, concerning the 1999 directive on consumer Sales and associated guarantees (1999/44/EC). The Directive harmonises the remedies available to consumers in case goods they have bought turn out to be of disappointing quality, by making sellers liable for the good's non-conformity. In contrast to more recent instalments in EU consumerist legislation, the 1999 Directive mainly addressed high street sales. The huge growth of e-commerce over the past decade has, then, if anything caused less trouble so far than one may have expected. 

However, in the case at stake, the limits of the Directive in the field of online sales are highlighted - even though the contract in this case had been concluded over the phone... According to the Directive's article 3.3, 

Any repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.

The article is mute on where the repair should take place. Article 3.4 is clear that remedies should be effected free of charge, including without requiring the consumer to incur shipping costs.  But what if the consumer were able to return the goods in person? 

The dispute before the Court of Justice concerns a large party tent. The dispute before the concerned German court hinged on whether the consumer should have brought the allegedly non-conform good to the seller's premises, or whether making the tent available at his own home was sufficient. 

AG Wahl first considers whether the question of where the tent should be made available is covered by the requirement that remedies be offered free of charge. While the answer to this question is not an obvious one, the AG considers the two alternative requirements - that the remedy take place within reasonable time and without significant inconvenience for the consumer - to offer more promising interpretive avenues. 

In essence, AG Wahl uses the two requirements to build one larger argument: the appropriate place for offering the goods is the one that, in the circumstances of a given case, allows for timely repair or replacement, without significant inconvenience for the consumer. It follows that it will be for the courts invested with a specific dispute to ascertain whether, in that case, the consumer could be required to do more than make the good available at their home. 

In particular, the AG notes, the question mainly arises

for goods purchased by distance selling. In the case where the consumer bought the goods at the seller’s place of business and, moreover, the goods do not require specific installation, it can, to my mind, be assumed that the making available of the goods at the seller’s place of business does not constitute any significant inconvenience to the consumer.

Besides the fact that this last consideration may be openly in contrast with the substance of Weber and Putz, the very broad interpretive exercise carried out by AG Wahl seems less straightforward than, for instance, the alternative option of considering the question to be included in the "free of charge" requirement. The AG seems to be more keen on preserving the balance of rights and duties that he considers to be the aim of the Directive (see the remarks at paras 34-45) than on carrying out rigorous interpretation. Admittedly, however, the results of the more straightforward avenue suggested above would be very far reaching - perhaps exceedingly so. 

The answer suggested by the AG here, additionally, seems to open up to a great degree of uncertainty. This may not be a big problem for national courts, who may well be used to working with open norms, but may not be a particularly desirable state of things from the point of view of harmonisation. One more consideration to be taken into account in the process of recasting the 1999 Directive. Unless, of course, the Court will come up with an answer that avoids the shortcoming of both the avenues discussed. As usual, stay tuned!

Towards a more coherent European contract law (once again)? Major amendments to the sales proposal

Last Tuesday the Commission published an amended proposal for a directive on certain aspects concerning contracts for the (online and other distance) sales of goods, introducing far-reaching changes to the original file. Most importantly, the scope of the proposal was extended to cover face-to-face sales of goods, meaning that the European lawmakers are now looking into a much broader reform of consumer contract law. Like the original proposal, which extended only to distance sales, but unlike the currently applicable Directive 1999/44/EC, the amended proposal is based on a full harmonisation approach. Impact of such a fully harmonised set of rules is discussed in the Staff Working Document accompanying the proposal. Should the newly presented file go through, Directive 1999/44/EC on consumer sales would be repealed completely. 

The idea of having two distinct sets of contract rules for distance and face-to-face sales did not seem to sit well with anyone from the very beginning. A potential extension of the scope was already envisaged in late 2015, when the original proposal was tabled. Concerns with regard to the original file were also voiced by stakeholders and co-legislators. Indeed, up till now reports about the progress made in the European Parliament and the Council with regard to the sales proposal were not very encouraging. Much more attention seemed to be devoted to the second proposal adopted at the same time, concerning contracts for the supply of digital content. Analyses were nevertheless ongoing - for further reading see in particular the results of the Commission's REFIT exercise or the impact assessment carried out the the European Parliamentary Research Service. 

This is not to say that the amended proposal will not be a source of controversy. Past experience with regard to the harmonisation of European contract law shows that this is a very tricky ground. Even if the potential inconsistency between the rules applicable to different sales channels is now removed and material scope of the proposal is largely based on Directive 1999/44/EC, the full harmonisation approach is bound to raise concerns. Suffice it to recall that this was one of the key issues raised by BEUC with regard to the original proposal. Heated discussions concerning the particular solutions provided for in the proposal are thus to be expected.