Joined cases C65-09 and C87-09 Weber v Wittmer : Putz v Medianess Electronics
In one case, Mr Wittmer bought polished tiles from Weber which turned out to be defective once laid. The defect could not be removed so the tiles needed to be removed and new ones laid. Weber refused to do this because the cost would be too high. In the other case, Miss Putz bought a dishwasher online from Medianess which turned out to be faulty after it was installed. Medianess did not respond to her request to remove and replace the machine. The cases were referred to the ECJ.
Article 3(3) of Directive 1999/44/EC provides that "a consumer may require a seller to repair goods or to replace them, in either case free of charge, unless this is impossible or disproportionate. A remedy is disproportionate if it imposes costs on the seller which, in comparison with the alternative remedy are unreasonable, taking into account: the value of the goods if defect free, the significance of the defect, and whether the alternative remedy could be completed without significant inconvenience to the consumer."
The ECJ held that where goods have been installed by the consumer before the defect becomes apparent, the seller must either install replacement goods or bear the cost of doing so, whether or not it was obliged to install the goods in the first place. If only one remedy is possible under Article 3(3) i.e. the seller is in a position either to repair or replace but not both, the seller cannot refuse to provide that sole remedy because the cost would be disproportionate.
However, a seller does have some right to limit the consumer's right to reimbursement of the cost. The court said: "Where replacement of the defective goods, as the only possible remedy, involves disproportionate costs because of the need to remove the goods not in conformity from where they were installed and to install the replacement goods, Article 3(3) of the Directive does not preclude the consumer's right to reimbursement of the cost of removing the defective goods and installing the replacement goods from being limited, where necessary, to an amount proportionate to the value the goods would have if there were no lack of conformity and the significance of the lack of conformity". [whatever that means]
Clients who supply goods which have to be installed should be made aware of this decision. Note that the disproportionate test applies to a comparison of the costs of replacement or repair. This was not clear previously – it could also have applied to the reduction in the purchase price or rescission.
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