Guarantee statements and subjective consumer satisfaction – CJEU in LACD (C-133/22)

On Thursday, the CJEU (in C-133/22) ruled on the precise meaning of "commercial guarantee" as defined by point 14 of Article 2 of the Consumer Rights Directive ("CRD").

The referring court (German Federal Court of Justice) specifically asked whether the provision must be interpreted as meaning that a "commercial guarantee" includes, as "any other requirements not related to conformity set out in the guarantee statement" (Art. 2), an undertaking made by the guarantor regarding "circumstances specific to the consumer, in particular his or her subjective attitude towards the item purchased (in this case, the consumer's personal satisfaction with the item purchased (...) without it being necessary that those personal circumstances relate to the condition or features of the item purchased" (ruling). 

Consumers, reading this case, will be interested in this question: Can an intelligibly worded guarantee cover reasons for dissatisfaction with the product which are exclusively subjective and only concern how the consumer feels about the product? 

Let's take a look at the facts of the case. LACD is a company which distributes sports and fitness products both via online merchants and retailers. On LACD products, consumers could find a tag defining a pretty wide "LACD Warranty". The tag stated: 

"Every LACD product comes with our lifetime guarantee. If you are not completely satisfied with any of our products, please return it to the specialist dealer from whom you purchased it. Alternatively, you can return it to "LACD" directly but remember to tell us where and when you bought it." 

BB Sport, a retailer of sport and fitness products, purchased two LACD t-shirts through a mystery shopper and upon reading the tag brought an action before the Regional Court of Munich seeking an injunction which would prohibit LACD form attaching those hangtags. BB Sport considered the tags not to meet the statutory requirements applicable to guarantee statements, as detailed under Article 443 and 479 of the BGB.  The provisions establish that: 

"the specific undertaking by the seller (...) set out in a statement (...) constitutes a guarantee in addition to the guarantee of conformity, the purpose of which is to reimburse the purchase price, to replace or repair the goods sold or to provide any other service in connection with those goods in they do not meet the specifications or any other requirements not related to conformity set out in that guarantee statement" (ruling). Such statement "must be worded in plain, intelligible terms" and must list "the elements which that statement must include" (ruling)

The first court dismissed the action, while the Higher Regional Court of Munich upheld the appeal. LACD brought an appeal before the Federal Court of justice, which referred to the CJEU with the question detailed above. 

The CJEU first observed that nothing, in the way Article 2 of the CRD is worded, excludes from its scope of application a guarantor's undertaking regarding the consumer's subjective and personal satisfaction with the product purchased. "Any other requirements" is a wide expression, as observed by the AG, and there is no need for those requirements to refer to an "objective consideration related to the features or properties of those goods". This interpretation is consistent with the objective of the CRD, which is aimed at providing a high level of consumer protection by ensuring consumers have all the information necessary to make a decision before purchasing. Consumers purchasing from LACD will know that they are guaranteed a high level of protection, also as regards their very personal dissatisfaction with a product.

The Court observes that, after all, in making this undertaking LACD is only using its right to conduct business, established by Article 16 of the Charter of Fundamental Rights of the European Union. 

Finally, the Judges rule that, because the statement provides guarantees related to the consumer's subjective satisfaction with the products, the failure to satisfy the expectation "cannot, by definition, be subject to objective verification" (ruling). A mere statement of the consumer must be considered sufficient. 

This ruling can certainly be regarded as ensuring a high level of consumer protection, allowing at the same time traders to offer a very wide guarantee and thus conduct their business as they think is best. Clearly, the wording of the statement must comply with clarity requirements and always be worded intelligibly and plainly. 

Price reduction for travel services not performed due to pandemic - CJEU in FTI Touristik (C-396/21)

On January 12, the CJEU issued a judgment in FTI Touristik (C-396/21) as to the application of the Package Travel Directive  (Directive (EU) 2015/2302) in the times of a global pandemic. Specifically, the question raised by the national court was whether national restrictions adopted to fight the spread of Covid-19 could be perceived as leading to non-conformity of a package, if such restrictions were imposed globally. 

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The travellers booked a 2-week package holiday from Germany to Greece for March 2020 and, unfortunately, were unexpectedly subject to the first wave of pandemic restrictions being put in place (e.g. beaches were closed, curfew was adopted, access to swimming pools/sunbeds was prohibited, entertainment was discontinued). Their 'holiday' ended early, after 7 days. Could they claim price reduction for the package they purchased considering that it was performed in a very limited scope?

Art. 14(1) PTD entitles travellers to price reduction in any circumstances when there was a lack of conformity, unless it was attributable to them. As the CJEU observes, there is one condition to obtain this remedy (lack of conformity) (para 21), with AG Medina pointing out also that there is only one exception to this - attribution to a traveller (para 16 Opinion of AG Medina, para 23 judgment). As the lack of conformity is defined as a 'failure to perform or improper performance of the travel services' (Art. 3 point 13 PTD), this concept is not linked to fault or any specific circumstances that led to non-conformity. The objective nature of this finding does not allow for considering the cause/origin of the lack of conformity (para 22). Consequently, even if non-conformity results from extraordinary circumstances, these would not impacts its finding (para 24). 

Further, as the CJEU rightly observes, the structure of Art. 14 PTD clearly divides remedies that travellers could always claim (provided they did not contribute to it) - that would be price reduction, and these they could claim only if the organiser or parties involved in the provision of travel services were responsible for the non-conformity - that would be compensation (para 24). There would be no need to separate these remedies in the structure of the Directive, if either could be excluded from consumer rights by the occurrence of extraordinary circumstances (para 24). This dissociation of the two remedies occurred during the legislative process, which serves to prove the intention of the legislator to equip consumers in the right to price reduction in the majority of non-conformity cases (para 30). 

Consequently, irrespective of whether Covid-19 restrictions are recognised as force majeure  or a 'general life risk' (para 33), consumers have a right to claim price reduction for the lack of conformity of their package. Their claim will, however, be restricted to non-performance or improper performance of these services that were included in the contract (para 37), incl. services that were not explicitly mentioned in the contract but could be linked to it based on the purpose of the travel (para 38). In this case, courts will need to consider e.g. whether access to the public beach would be linked to the purpose of the travel, even if it was not guaranteed in the contract. Also, the assessment of the 'appropriateness' of the price reduction itself needs to objectively consider the travel services' value (para 39).

It is important to note, as well, that the CJEU specifically addresses whether PTD applies in a situation of a pandemic, stressing that 'the application of Directive 2015/2302 is not limited to instances of travel disruption of a certain scale or at a local level.' (para 29).

This judgment will allow at least some travellers whose travel was affected by the pandemic to claim remedies easier. However, the preliminary reference was limited to circumstances where the travel started before pandemic restrictions were put in place. It will likely not apply to these cases, when the contract was concluded and travel began after restrictions were already imposed (para 33 Opinion of AG Medina).

Return to sender - CJEU in Fülla (C-52/18) on bulky non-conforming goods

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).

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!

Status quo on fighting planned obsolescence

Some of our readers might have noticed a news item posted yesterday on the BBC website 'Climate change: 'Right to repair' gathers force'. Despite what the title suggests, consumers of course already have the right to repair a non-conforming good, pursuant to Article 3 of the Consumer Sales Directive. The discussed issue pertains rather to the problem of planned obsolescence, that is: designing goods in a way that they malfunction shortly after the warranty period lapses. This not only causes inconvenience and burdens consumers financially, but is also bad for the environment as it increases the amount of industrial waste (most of the time the goods are impossible or too expensive to repair, so consumers purchase a new replacement product instead). 

This problem has been repeatedly raised in the news, scholarship and on a political scene in the past few years. Are there any solutions coming on the EU level? The BBC article mentions that European environment ministers are planning 'to force manufacturers to make goods that last longer and are easier to mend'. However, the EU Ecodesign Directive, mentioned in the article is already in force for quite a few years and as it is a framework directive, it only defines general principles of ecodesign, without placing any specific, restrictive conditions on the manufacturers. Such specific requirements could be adopted through further implementing measures, i.e. regulations adopted by the European Commission. Some of the implementing measures adopted so far concern sectors such as lighting, televisions and large home appliances (dishwashers, refrigerators etc.). More details on the Ecodesign and Labelling can be found on this portal.

What the BBC article does not mention are the changes proposed to the Consumer Sales Directive in the amended proposal for a Directive on certain aspects concerning contract for the online and other distance sales of goods (COM/2017/0637 final) (we have reported on the general approach being agreed by the Council in December, see: 2019 forecast...). This new measure aims to further prioritise the right to repair of consumers. Draft recital 26 mentions "...enabling consumer to require repair should encourage a sustainable consumption and could contribute to a greater durability of products." So far, the draft text of the new directive does not really reflect this priority though, to the contrary - disposing of the strict hierarchy of remedies might facilitate easier contract's termination. The Council added one beneficial provision though: the goods' conformity will be assessed also on the basis of such goods meeting consumers' expectations as to their durability (see draft recitals 19, 27 and art. 5(1)(c) of the General Approach). Will the Council and the Parliament introduce further changes to the draft proposal in the coming months?

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').

 

Remedies

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.

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).

Towards more durability for consumer products

When you purchase a more expensive hand mixer for your cooking experiments, you expect it not only to whip and mix everything faster, easier and better, but also to last longer. Imagine then that the whisk breaks within a year of your purchase. Even though you have used your hand mixer often, you still feel like it should have survived longer. Do you then buy a new hand mixer or just try to replace the whisk? What if you cannot buy a separate accessory or if the hand mixer has already been replaced by newer models and old accessories are not on the market? This is when we would talk about a planned obsolescence of a product - when the producer intended the product to last only for a specific amount of time and designed it to e.g. break after this time. 

The European legislator generally encourages not only the increase in the products' durability but also transparency about the life span of the products and the availability of spare parts. The Waste Electrical & Electronic Equipment Directive (2012/19) sets, therefore, only minimum requirements and allows the Member States to adopt stricter ones. While the European Economic and Social Committee set up the Consultative Commission on Industrial Change (CCMI) that argues for the introduction of a ban on planned and built in obsolescence (see their publication: Towards more sustainable consumption...), no enforcement action at the European level has been taken yet and the rules on transparency have not been further specified either. Some Member States are, thus, adopting their own national rules to provide more consumer protection. For example, in France a new decree 2014-1482 obliges French producers to inform sellers, who then are to convey this information to consumers, about the durability of their products and the availability of the spare parts under a threat of fine of 15.000 euro (see French government tackles planned obsolescence). As of 2016 they would also have to provide a 2 year warranty for white goods, which would force them to repair or replace free of charge any defective products within two years from the original purchase date, since the consumers would enjoy a presumption that any non-conformity manifesting within the first 2 years from the purchase date was inherent in the product (Loi Consommation: consommation responsable). This effectively extends the minimum period for this presumption of 6 months (guaranteed by the implementation of the Consumer Sales Directive 1999/44) to two years.

Notification without naming the cause of non-conformity possible - CJEU in Faber (C-497/13)

4 June 2015: CJEU in Faber (C-497/13)

And important judgement has been issued today by the CJEU in the Dutch case Froukje Faber v Autobedrijf Hazet Ochten BV. Ms Faber bought a second-hand car from the Hazet garage. The contract was a pre-printed form entitled 'contract of sale to a private individual'. A few months after the purchase (26 Sep 2008) Mrs Froukje was driving her car with her daughter, on her way to a business meeting, when it burst into flames and was completely destroyed. It's in dispute between the parties whether immediately after the accident they discussed the matters of liability of the garage. A few months after the accident the garage contacted Mrs Faber and was told she was waiting for the police report on the fire. The police informed her that no technical report had been compiled. The vehicle was scrapped in May 2009, upon which event Ms Faber informed Hazet garage that she held them liable for her damage (purchase price of the car + value of items in the car). Since the car had been scrapped, investigation into the fire cause was no longer possible. In her claim against the company, Ms Faber raised the issue of non-conformity of the car, without, however, alluding to her status as a consumer. If she was seen as a consumer, she could have used the non-conformity presumption reversing the burden of proof as to the defect's cause when the defect materialised within 6 months from the delivery.

The Dutch court of appeals asked among other 1) whether it should investigate ex officio whether consumer protection granted by the Consumer Sales Directive should apply in this case to preserve effectiveness of these rules, 2) especially when the court did not have sufficient information to establish consumer status, 3) also on the appeal when the matter was left open in the proceedings of first instance. Moreover, 4) the Dutch court asks whether Art 5 (3) of CSD on the presumption of non-conformity within 6 months from delivery should be seen as equivalent in status to rules of public policy. Furthermore, 5) it is questioned whether Dutch law requiring consumer to notify the seller about non-conformity could be validly combined with a duty to present facts and evidence with regard to that non-conformity at the same time. Finally, 6) it is inquired what standard of proof should be placed on the consumer with regard to presenting facts and adducing evidence on non-conformity and its apparent character within six months of delivery. Should the consumer prove which defect caused the goods to malfunction or only that they malfunction?

The first three questions were easiest to predict the answer to. Consistent with its case law (Par. 42), the CJEU establishes the duty of national courts to ex officio determine whether the buyer could be classified as a consumer, even if the buyer did not rely on that status. This holds true when the court "has at its disposal the matters of law and of fact that are necessary for that purpose or may have them at its disposal simply by making a request for clarification" (Par. 48). It is for the national court to undertake necessary investigation as to these facts. (Par. 40)

Art. 5 (3) of the CSD changes the burden of proof with regard to the non-conformity, considering that it is usually easier for the professional to disprove the existence of the default at the moment of purchase. The CJEU declares this provision as of equal standing to national rules of public policy. (Par 56)

Dutch law used the option from the CSD and adopted the notification duty for the buyer within two months after the discovery of the lack of conformity. Some case law of the Dutch Supreme Court accepted also as valid notification delivered after this period of time, if circumstances of the case (difficulties in gathering evidence) justified this. It is the buyer who has the burden of proof that he fulfilled this notification duty.  (Par 59) The aim of the CSD was to encourage diligence of the buyer and increase the legal certainty for the seller, without imposing an obligation on the consumer to carry out a detailed inspection of the goods. (Par 61) "As is apparent from the wording of Article 5(2) of Directive 1999/44, read in the light of recital 19 in the preamble thereto, and from the purpose of that provision, the obligation thereby imposed on the consumer cannot go beyond that of informing the seller that a lack of conformity exists." (Par 62) Most interesting is the following paragraph 63 giving detailed instructions as to the requirements for the notification duty:

"As regards the content of that notification, the consumer cannot be required, at that stage, to furnish evidence that a lack of conformity actually adversely affects the goods that he has purchased. In view of his weak position vis-à-vis the seller as regards the information relating to the qualities of those goods and to the state in which they were sold, the consumer cannot, in addition, be required to state the precise cause of that lack of conformity. By contrast, in order for the notification to be of use to the seller, it must include a certain number of particulars — the degree of precision of which will necessarily vary depending on the specific circumstances of each case — relating to the nature of the goods in question, the wording of the contract of sale in respect of those goods and the way in which the alleged lack of conformity became apparent."

Dutch law may not, therefore, make it difficult for consumers to fulfil their notification duties by obliging them to provide excessive evidence with regard to the lack of conformity. What is then for the consumer to prove?

"In the first place, the consumer must allege and furnish evidence that the goods sold are not in conformity with the relevant contract in so far as, for example, they do not have the qualities agreed on in that contract or even are not fit for the purpose which that type of goods is normally expected to have. The consumer is required to prove only that the lack of conformity exists. He is not required to prove the cause of that lack of conformity or to establish that its origin is attributable to the seller.

In the second place, the consumer must prove that the lack of conformity in question became apparent, that is to say, became physically apparent, within six months of delivery of the goods." (Par. 70-71)

The seller would then need to prove that the cause or origin of that lack of conformity lies in circumstances that occurred after the delivery. (Par. 73)

Very important case for all aficionados of notification duties and evidence rules! I would think that in this case Ms Faber could then rest by stating that her car caught fire within 6 months from delivery and it would be the seller who would need to establish the cause of that fire as not resulting from a lack of conformity. This would eliminate the need for consumers to await the professional reports on the non-conformity potential origins, which often delay them in making notifications to the seller.