UK: New Perspectives On Sale Of Goods - Maximum Harmonization And Higher Protection Of Consumers Under The Directive (EU) 2019/771

Last Updated: 29 July 2019
Article by Amalia Musat

Recently adopted and published Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (Directive) aims to provide a higher level of consumer protection and contribute to the proper functioning of the internal market by setting common rules on contracts of sale between consumers and sellers concerning the conformity of goods with the contract, remedies in the event of a lack of conformity, modalities to exercise remedies, and commercial guarantees.

Directive came into force on 11 June 2019 and the provisions of the Directive shall apply to contracts concluded after 1 January 2022.

Brief context

Directive was introduced for the purpose of harmonising certain aspects concerning the sale of goods. Although Directive 1999/44/EC (Consumer Sales Directive) already provided a regulatory regime in this area, Member States have adopted various forms of legislation to achieve even greater consumer protection. This resulted in a variety of legislative norms across borders, and consequently in uncertainty for both sellers and consumers. This Directive comes, of course, in the context of digital and e-commerce transformations.

Although the base of the Directive is the provision of a higher level of consumer protection, the legislative harmonisation it initiates will benefit legal certainty and reduce transaction costs, particularly for small and medium-sized enterprises (SMEs). This coincides with certain aims expressly stated in the Treaty of the Functioning of the EU, namely the free movement of goods and services, and the attainment of a high level of consumer protection.

However, the adopted version of the Directive, unlike the initial proposal, does not provide a legislative system of complete harmonisation, but allows Member states to implement more enhanced forms of consumer protection in areas expressly stated in the Directive.

1. Scope of the directive

Directive explicitly includes "goods with digital elements", i.e. goods with tangible movable items that incorporate or are inter-connected with digital content or digital services in such a way that the absence of the digital content/services would prevent the items from performing their function. For example: smartphones, smart TVs, smart watches, fitness trackers.

Alternatively, tangible items that exclusively function as carriers of digital content or services are to be covered by Directive for Digital Services. Examples include DVDs, CDs, USB sticks. The two directives are to be considered complementary.

This Directive should apply to any contract whereby the seller transfers or undertakes to transfer the ownership of goods to the consumer (e.g. platform providers f they act for purposes relating to their own business and as the direct contractual partner of the consumer for the sale of goods).

The provisions of this Directive are of mandatory nature, which means that: (i) unless otherwise provided, any contractual agreement which, to the detriment of the consumer, excludes the application of national measures transposing this Directive, derogates from them, or varies their effect, before the lack of conformity of the goods is brought to the seller's attention by the consumer, shall not be binding on the consumer and (ii) this shall not prevent the seller from offering to the consumer contractual arrangements that go beyond the protection provided for in this Directive.

2. Conformity

The new directive provides a more detailed and clear set of rules to determine what constitutes a good in conformity with the contract versus the previous Directive 1999/44/EC. It therefore includes both subjective and objective criteria for assessing conformity.

  • Subjective criteria (depending on the sales contract): (a) description, type, quantity and quality, functionality compatibility, interoperability and other features required by the sales contract; (b) fitness for the purpose required by the consumer, which was communicated to and accepted by the seller before the completion of the contract; (c) delivery with all accessories and instructions stipulated by the sales contract; and (d) supply of all updates as stipulated by the contract.
  • Objective criteria (applicable to all goods): (a) fitness for purposes for which the same type of goods are normally used; (b) quality compared to the description of the sample or model previously made available by the seller; (c) delivery with accessory and instructions reasonably expected by the consumer; (d) quality and quantity and other features normal for goods of the same type which the consumer may reasonably expect given the nature of the good and any public statements made by the seller.

3. Liability

Liability of the seller remains the same as under the previous directive, namely 2 (two) years for any lack of conformity which existed at the time of delivery. In the case of goods with digital elements which involve a continuous supply for more than 2 (two) years, the liability period is the same as the supply period under the contract.

Member States remain free to introduce longer liability periods, and may provide that in the case of second-hand goods, the seller and the consumer are entitled to agree on a shorter liability period of at least one year.

A novelty of Directive is the provision of a reversed burden of proof where a lack of conformity is discovered within 1 (one) year from delivery. In such cases, the lack of conformity is presumed to have existed at the moment of delivery. Member States may extend this period to 2 (two) years.

Member States may also introduce an obligation on the consumer to notify the seller of any lack of conformity within 2 (two) months from when they discovered it.

4. Remedies

In case of a lack of conformity, consumers are entitled to have the goods brought into conformity (repair and replacement), or to receive a proportionate reduction of price, or to terminate the contract. The strict hierarchy provided by Directive 1999/44 has been mellowed down by the introduction of more detailed exceptions allowing sellers to opt for price reduction or termination instead of a specific performance. For example, the seller should be allowed to refuse to bring the goods into conformity if the repair or replacement is impossible and the alternative remedy would impose disproportionate costs to him. or when goods are located in a different place from where they were originally delivered, the costs of postage and carriage could become disproportionate for the seller.

In addition to laying down the remedies of repair, replacement and termination of the contract and the modalities thereof (which were essentially already embedded in the old directive), the Directive likewise provides a detailed description of situations which give consumers the right to terminate the contract. The list includes situations where the seller has not fulfilled his obligation to repair or replace in accordance with the Directive (either he did not manage to complete it or he declared his refusal to bring the goods into conformity), but also explicitly refers to situations with a severe defect or where a non-conformity reappears after a repair or replacement attempt. As a result, if defects are recurrent or severe, consumers do not have to wait for the seller to fix the problem and can directly opt for a price reduction (while keeping the product) or for termination of the contract (while returning the product for a full refund).

Contrary to the Commission's initial proposal however, the consumer is not entitled to terminate the contract in case of minor defects. The burden of proof with regard to whether the lack of conformity is minor shall be on the seller.

5. Commercial guarantees

The Directive firstly clarifies that if the conditions laid out in associated advertising are more extensive, guarantee statements made in advertising take priority over the commercial guarantee statement. Furthermore, a commercial guarantee statement must be provided to the consumer on a durable basis, at the latest at the time of delivery of the goods. Under the old directive, this only had to be provided if requested by consumer.

The Directive still leaves room for the Member States to regulate matters regarding commercial guarantees not regulated by it, for example in which language the commercial guarantee statement should be made.

6. Enforcement

Deadline to transpose the measures into the national law is 1 July 2021 which shall apply from 1 January 2022.

Member States should provide access to information regarding the rights of consumers and the means to enforce those rights under this Directive.

Member States should also remain free to extend the application of the rules of this Directive i.e. to contracts that are excluded from the scope of this Directive, or to otherwise regulate such contracts (e.g. also to natural or legal persons that are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or SMEs) or to other kind of sellers (e.g. platforms that do not fulfil the requirements for being considered a seller under this Directive).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions