On 4 June 2015, the Court of Justice of the European Union (the "ECJ") clarified the scope of Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (the "Directive") in the context of a request for a preliminary ruling from a Dutch Regional Court of Appeal (Case C-497/13, Froukje Faber v. Autobedrijf Hazet Ochten BV).

The request was made in the context of a dispute between Ms Froukje Faber and a garage called Autobedrijf Hazet Ochten BV (the "Hazet garage"). In May 2008, Ms Faber had purchased a secondhand vehicle at the Hazet garage. In September 2008, the vehicle caught fire and was entirely wrecked. The vehicle was towed to the Hazet garage by a tow truck and later sent to a scrapyard. In May 2009, Ms Faber notified the Hazet garage that she was holding it liable. While a technical investigation was needed to determine the cause of the vehicle fire, such an investigation could not take place as the vehicle had been scrapped in May 2009.

The ECJ was first asked whether a national court before which an action is brought is required to examine of its own motion whether the purchaser is to be regarded as a consumer within the meaning of the Directive, regardless of whether the party has relied on that status. The ECJ responded in the affirmative. The rationale for this approach is that the consumer protection system established by the Directive is predicated on the weak position of the consumer vis-à-vis the seller both in terms of bargaining power and level of knowledge. Accordingly, there is a substantial risk that the consumer, given his lack of awareness, will not rely on the rules that are intended to protect him.

Likewise, the ECJ held that a national court may, in the context of an appeal, raise Article 5(3) of the Directive of its own motion. Article 5(3) provides that "[u]nless proved otherwise, any lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity". This relaxation of the consumer's burden of proof is justified by the fact that it is nearly impossible for a consumer to prove that the lack of conformity existed at the time of delivery, whereas it is generally far easier for the professional to show that the lack of conformity was not present at that time. In view of the importance of the public interest underlying the protection which Article 5(3) confers on consumers, the ECJ ruled that Article 5(3) should be considered as a provision of equal standing to a rule of public policy within the domestic legal system.

Further, the ECJ was questioned on whether the principle of effectiveness precludes a national rule requiring the consumer to prove that he informed the seller of the lack of conformity in good time. In this regard, the ECJ noted that Article 5(2) of the Directive permits EU Member States to require the consumer to inform the seller of the lack of conformity within a period of two months from the date on which he or she detected the lack of conformity in order to benefit from the rights stemming from the Directive. Referring to the Directive's wording and purpose, the ECJ held that the consumer's notification obligation cannot go beyond that of informing the seller that there is a lack of conformity. The consumer cannot be required, at that stage, to furnish evidence that the lack of conformity actually adversely affects the purchased goods. In view of his weak position vis-à-vis the seller, as regards the information and knowledge relating to (i) the characteristics of the goods sold and (ii) the state in which they were sold, the consumer cannot, in addition, be required to state the precise cause or origin of that lack of conformity. However, the ECJ explained that for the notification to be of any use to the seller, it must include a specific number of particulars, the degree of precision of which will necessarily vary depending on the circumstances of each case. The rationale is to encourage diligence of the consumer and increase legal certainty for the seller without, however, imposing a heavy burden of inspection of the goods on the consumer.

Finally, the ECJ was asked to clarify how the apportionment of the burden of proof on the consumer under Article 5(3) of the Directive functions and, in particular, which matters are to be established by the consumer. The ECJ replied that, in order to benefit from the relaxed burden of proof under Article 5(3), the consumer must:

(i) allege and furnish evidence that the goods sold are not in conformity with the relevant contract in that, for example, they do not have the qualities contractually agreed upon, or are not fit for the purpose which such goods are normally expected to have (without it being necessary to prove the cause of that lack of conformity or that its origin is attributable to the seller);

(ii) prove that the lack of conformity in question became apparent (i.e., physically apparent) within six months of delivery of the goods (in which case it can be assumed that the lack of conformity already existed "in embryonic form" in those goods at the time of delivery).

Once the consumer has established the above facts, he or she is relieved from the obligation to establish that the lack of conformity existed at the time of delivery of the goods. The burden of proof thus shifts to the seller, who has to prove that the cause or origin of the lack of conformity is an act or omission which took place after the delivery of the goods.

The ECJ's judgment is interesting not only in that it confirms and clarifies the consumer's rights and burden of proof under the Directive, but also because it stresses the national courts' duty to enforce rights of consumers deriving from the 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.