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Europaudvalget 2009-10
KOM (2008) 0614 Bilag 3
Offentligt

COUNCIL OF

THE EUROPEAN UNION

Brussels, 21 August 2009

12721/09

Interinstitutional File:

2008/0196 (COD)

LIMITE

CONSOM 166

JUSTCIV 181

CODEC 1046

NOTE

from :

to :

No. prev. doc. :

No. Cion prop. :

Subject :

General Secretariat of the Council

Working Party on Consumer Protection and Information

11565/09 CONSOM 141 JUSTCIV 166 CODEC 935

14183/08 CONSOM 110 JUSTCIV 220 CODEC 1315

Proposal for a Directive of the European Parliament and of the Council on

consumer rights

Delegations will find attached the Presidency text on the above-mentioned proposal.

The additions with respect to the Commission's proposal are marked in

bold

and deletions with

strikethrough.

The additions with respect to previous document 11565/09 are marked in

bold

and deletions with

bold.

________________________

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ANNEX

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on consumer rights

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95

thereof,

Having regard to the proposal from the Commission

Having regard to the opinion of the European Economic and Social Committee

Acting in accordance with the procedure laid down in Article 251 of the Treaty

Whereas:

…

(37) For the purpose of simplification and legal certainty, the right of withdrawal should apply to

all types of off-premises contracts, except under strictly defined circumstances which can

easily be proved. Therefore, no right of withdrawal should apply for

There are situations in

case of off-premises contracts where the consumer should have no right of withdrawal,

such as

urgent repairs at the consumer's home for which such a right of withdrawal would be

incompatible with the emergency situation as well as for supermarket home-delivery schemes

which allow consumers to select food, drinks and other goods intended for current

consumption in the household through the supermarket's website and have them delivered at

their home. These are goods, which are inexpensive and bought regularly by consumers for

their every day's consumption or everyday use in the household and should therefore not be

subject to a right of withdrawal.

OJ C , , p. .

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(37a)

The main difficulties encountered by consumers and the main source of disputes with traders

are about delivery of goods, including goods getting lost or damaged during transport and late

and partial delivery. Therefore it is appropriate to clarify and harmonise the national rules on

delivery and passing of risk.

[Moved to recital 37c]

(37b) The rules on remedies for non-

conformity should apply to contracts for sale of goods as well as to contracts where the

aim of the contract is to transfer the ownership of the goods from the trader to the

consumer. However, the rules concerning the determination of the conditions for and

the moment at which the ownership in the goods is transferred, remain subject to

national law and are thus not affected by this Directive.

(37b) Where a contract has as its object both the goods and services are parts of the contract.

However, in case of such contracts, the rules on remedies for non-conformity should

apply only to the goods. However, there are contracts for sale of goods which include a

minor service performance necessary to fulfil the contract for the sale of goods, for

instance where a seller accepts to adjust the goods to fit the consumer or where a seller

accepts to install the goods. The rules on remedies for non-conformity should therefore

apply also to contracts which include service performances such as installation,

assemblage or adjustment.

(37c) The rules for non-conformity should not apply to spare parts that have been replaced

while remedying the lack of conformity. However, if the lack of conformity of the

repaired goods reappears in a short period of time, the consumer should be able to

choose any available remedy, including rescission of the contract.

The main difficulties

encountered by consumers and the main source of disputes with traders are about delivery of

goods, including goods getting lost or damaged during transport and late and partial delivery.

Therefore it is appropriate to clarify and harmonise the national rules on

when

delivery and

passing of risk

should occur. The place and modalities of delivery should still be subject

to national law.

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(38)

In the context of consumer sales, the delivery of goods can take place in various ways. Only a

rule which may be freely derogated from will allow the necessary flexibility to take into

account those variations.

Where the trader fails to deliver in time, the consumer should

always be entitled to terminate the contract and request a refund, without prejudice to

other remedies available according to the applicable national law. The trader should

then be obliged to refund all sums paid and considerations provided by the consumer

within a short period of time. For the trader to comply, it should be enough to initiate

the refund, within the prescribed time. Any delays not related to him, for instance due to

the time for bank transactions, should not be considered. However, it is appropriate to

provide that in certain circumstances, for example in cases where the trader would have

difficulties to resell customised goods, the consumer may only terminate the contract if

the delay is significantly important to him and the trader was, or should have been,

aware of that. This might be the case where the good was ordered for a special occasion

and due to the delay would not arrive until after the occasion it was aimed for.

(38a)

The consumer should be protected against any risk of loss or damage of the goods occurring

when the goods are not within his control. During the a

transport arranged or carried out by

the trader,

this should apply also in situations when where the consumer has chosen a

particular delivery method from a range of options offered by the trader.

However,

The

rule introduced on the passing of risk should

however

not apply where the consumer unduly

delays taking

physical

possession of the goods (for example, when the goods are not collected

by the consumer from the post-office

or trader's premises

within

the agreed or set

deadline

fixed by the latter). In those circumstances, the consumer should bear the risk of loss or

deterioration after the time of delivery as agreed with the trader.

Should there be no

agreement on the time of delivery and the consumer unduly delays taking possession of

the goods, the risk passes on the consumer after [thirty] days from the conclusion of the

contract from the moment when he reasonably should have taken possession of the goods.

The nature of the goods, for instance if they are perishable, may cause even a short delay

to be considered as undue. Situations where the consumer exercises control over the

goods, but leaves the goods with the trader, for instance for storage, instead of taking

physical possession of them should be regarded as comparable with situations where the

consumer has acquired physical possession and the risk should then pass to the consumer.

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(39) The trader should be liable to the consumer if

where

the goods are not in conformity with the

contract. The goods should be presumed

not

to be in conformity with the contract if

unless

they satisfy a number of conditions concerning mainly the qualities of the goods.

The

elements mentioned in the presumption are cumulative, but if the circumstances of the

case render any particular element manifestly inappropriate the remaining elements of

the presumption nevertheless still apply.

The quality and performance which consumers

can reasonably expect will depend

inter alia

on whether the goods are new or second-hand as

well as on the expected life-span of the goods.

Where the consumer was, or could should

have reasonably been, aware of a defect on the goods, the consumer shall not be entitled

to rely on the provisions on the lack of conformity, there should be no lack of

conformity. However, this should not mean imply that there is any obligation of for the

consumer to inspect the goods at the time of delivery beyond a cursory glance. The

Directive should not apply to situations where the goods are subject to a third party

right that would adversely affect the consumer. Neither does this Directive affect

producer’s liability. These situations should be subject to national law.

(40) If the goods is

are

not in conformity with the contract, firstly, the consumer should

initially

have the possibility to require the trader to repair

or replace

the goods or, to replace them at

the trader's choice unless the trader proves that those remedies are

within the first fifteen

days from the day of delivery, to have the contract terminated. The right to terminate

the contract during this initial period may strengthen consumer confidence. However, in

order not to introduce an unnecessary burden on the trader, that right to terminate the

contract should be limited, where the trader would have difficulties reselling the goods,

for instance in relation to customised goods. When considering if repairing or replacing

a good would be

unlawful, impossible or

would

causes the trader disproportionate effort, the

trader's effort should be determined objectively considering costs incurred by the trader when

remedying the lack of conformity, the value of the goods and the significance of the lack of

conformity. The lack of spare parts should not be a valid ground to justify the trader's failure

to remedy the lack of conformity within a reasonable time or without a disproportionate

effort.

The legal consequences of terminating the contract should be subject to national

law.

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(40a) When the trader has either refused or has [more than] once failed to remedy the lack of

conformity, the consumer should be entitled to choose freely any of the available

remedies. The trader’s refusal can be either explicit or implicit, meaning in the latter

case that the trader does not respond or ignores the consumer’s request to remedy the

lack of conformity.

[Moved from former recital 42]

(41) The consumer should not bear any costs for remedying the lack of conformity, particularly the

cost of postage, labour and materials. Furthermore,

The

consumer should not

only

compensate the trader for the use of the defective goods

in situations where the contract has

been terminated and the consumer has benefited from the use of the goods.

(42) When the trader has either refused or has more than once failed to remedy the lack of

conformity, the consumer should be entitled to choose freely any of the available remedies.

The trader’s refusal can be either explicit or implicit, meaning in the latter case that the trader

does not respond or ignores the consumer’s request to remedy the lack of conformity.

(42a) There should be a general limitation period of two years, in during which the trader

should be liable for the lack of conformity. However, taking into account that there are

complex goods on the market, usually of a great value, the limitation period for such

goods should be longer due to their life-span that goes much beyond two years (cars,

refrigerators, washing machines, construction materials, etc.). where the lack of

conformity relates to the purpose for which the goods should be used, the time limit

should be ten years, due to the fact that for some goods it is difficult to discover this kind

of lack of conformity. This goes for example for construction materials where the lack of

conformity may not show until after a certain time.

(42b) In order to prevent, when a good is being repaired, spare parts of minor quality being

installed, which would cause detriment to consumers, the trader should be liable for the

spare parts during a period of six months after the repair independently of the

remaining period during which the trader is liable for the lack of conformity of the main

good.

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(42c) To limit the costs of repair in order not to introduce an unnecessary burden on the

trader, the consumer shall within a reasonable time inform the trader of the lack of

conformity of a good. Circumstances in the particular case, in relation for instance to

the nature of the lack of conformity or the time within which the consumer reasonably

could have been expected to contact the trader, are of relevance when deciding if the

consumer has acted appropriately.

(43) Directive 1999/44/EC allowed the Member States to set a period of at least two months during

which the consumer was to inform the trader of any lack of conformity. The diverging

transposition laws have created barriers to trade. Therefore, it is necessary to remove this

regulatory option and improve legal certainty by obliging consumers to inform the trader of

the lack of conformity within two months from the date of detection.

(44) Some traders or producers offer consumers commercial guarantees. In order to ensure that

consumers are not misled, the commercial guarantees should include certain information,

including their duration, territorial scope and a statement that the commercial guarantee does

not affect the consumer's legal rights.

The consumer should understand from that

statement that a commercial guarantee ascertains does not deprive him of his rights that

go beyond rights guaranteed to him by law.

…

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Chapter I

Subject matter, definitions and scope

Article 2

Definitions

For the purpose of this Directive, the following definitions shall apply:

…

(18) 'commercial guarantee' means any undertaking,

against consideration or provided for free,

by the trader or producer (the 'guarantor') to the consumer

beyond the legal guarantee

besides his legal obligations

to reimburse the price paid or to replace, repair or service goods

in any way if they do not meet the specifications set out in the guarantee statement or in the

relevant advertising

commercial communication

available at the time of, or before the

conclusion of the contract;

…

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Chapter IV

Other consumer rights specific to sales contracts

Article 21

Scope

This Chapter shall apply to sales contracts

between under which the trader and the

consumer for sale of goods undertakes to transfer the ownership of goods to the

consumer against consideration.

Without prejudice to Article 24(5),

Where

the contract is a

mixed-purpose contract having

has

as its object both goods and services, this Chapter shall

only apply to the goods,

unless the service performance is necessary to fulfil the contract

for sale of goods, in which case this Chapter shall apply to the entire contract.

This Chapter shall also apply to contracts for the supply of goods to be manufactured or

produced.

This Chapter shall not apply to the spare parts replaced by the trader when he has remedied

the lack of conformity of the goods by repair under Article 26.

Member States may decide not to apply

This

Chapter

shall not apply

to the sale of second-

hand goods at public auctions.

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Article 22

Delivery

Unless the parties have agreed otherwise, the trader shall deliver the goods by transferring the

material

physical

possession of the goods to the consumer or to a third party, other than the

carrier and indicated by the consumer

and acting on his behalf, immediately when the

contract is concluded on business premises and otherwise

within a maximum of

reasonable time which in any event cannot be more than

thirty days from the day of the

conclusion of the contract.

1a.

Where the trader has failed to fulfil his obligations to deliver, the consumer may, in

accordance with the applicable national law, allow an additional time for delivery,

enforce the performance of the contract, withhold payment, terminate the contract and

ask for damages.

If In any event, where

the trader has failed to fulfil his obligation to deliver

in the time in

accordance with paragraph 1,

the consumer shall be entitled to

terminate the contract and

request

a refund

without any undue delay. The trader shall then refund all

any sums paid

by the consumer without any undue delay but or other considerations provided by the

consumer

within

no later than

seven days from the date of delivery provided for in

paragraph 1

when he was informed about the consumer’s decision to terminate the

contract. The consumer may no longer terminate the contract if the goods have been

delivered.

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Besides the remedies provided by the Directive for late delivery, the consumer may refer

to other remedies provided by national contract law, such as provisions allowing the

parties to enforce the performance of a contract or allowing consumers to withhold

payment and/or ask for damages.

Where:

(a)

the contract concerns goods to be manufactured, produced or especially ordered

for the consumer and the trader would have difficulties reselling the goods, or

(b)

the goods have been delivered or delivery is imminent,

the consumer may only terminate the contract in accordance with paragraph 2 if the

delay was of significant importance to him and the trader was, or should have been,

aware of this.

Article 23

Passing of risk

The risk of loss of or damage to the goods shall pass to the consumer when

where

he or a

third party, other than the carrier and indicated by the consumer

him and acting on his

behalf,

has acquired the material

physical

possession of the goods,

or where the consumer

has obtained control over the goods in a way comparable with physical possession.

The risk referred to in paragraph 1 shall pass to the consumer at the time of delivery as agreed

by the parties, if

Where

the consumer or a third party, other than the carrier and indicated by

the consumer

and acting on his behalf,

has failed to take reasonable steps to acquire the

material

physical

possession of the goods

or to obtain control over the goods in a

comparable way, having been given reasonable opportunity to acquire such a possession

or control, the risk referred to in paragraph 1 shall pass to the consumer at the time he

failed to take such steps.

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Article 24

Conformity with the contract

The trader shall deliver the goods in conformity with the sales contract,

particularly

regarding quality, quantity and description. The goods shall be contained or packaged

in the manner required by the contract.

Delivered goods shall be presumed

not

to be in conformity with the contract if

unless

they

satisfy the following conditions:

(a)

they comply with the description given by the trader and possess the qualities of the

goods which the trader has presented to the consumer as a sample or model;

(b)

they are fit for any particular purpose for which the consumer requires them and which

he made known to the trader at the time of

before

the conclusion of the contract and

which the trader has accepted;

(ba) they contain are supplied with user instructions, where it this is necessary for the

proper use of the goods;

(bb) they are contained or packaged in a manner adequate to preserve and protect the

goods;

(c)

(d)

they are fit for the purposes for which goods of the same type are normally used; or

and

they show the quality and performance which are normal in goods of the same type and

which the consumer can reasonably expect, given the nature of the goods and taking

into account any public statements on the specific characteristics of the goods made

about them by the trader, the producer or his representative, particularly in advertising

commercial communication

or on labelling.

There shall be no lack of conformity for the purposes of this Article if

where,

at the time the

contract was concluded, the consumer was aware, or should reasonably have been, aware of

the lack of conformity, or if

where

the lack of conformity has its origin in materials supplied

by the consumer

if where he has been informed by the trader of the unsuitability of the

materials.

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The trader shall not be bound by

public statements, as referred to in paragraph 2(d)

where

he shows that one of the following situations existed:

(a)

(b)

he was not, and could not reasonably have been, aware of the statement in question;

by the time of conclusion of the contract the statement had been corrected

in a manner

which gave the consumer an opportunity to become aware of it;

(c)

the decision to buy the goods could not have been influenced by the statement.

Any lack of conformity resulting from the incorrect installation,

assemblage or adjustment

of the goods

made by the trader or under his responsibility

shall be considered as a lack of

conformity of the goods where the installation forms part of the sales contract and the goods

were installed by the trader or under his responsibility. The same shall apply equally if the

goods,

Where the goods are

intended to be installed,

assembled or adjusted

by the

consumer, are installed by the consumer and the incorrect installation is

any lack of

conformity

due to a shortcoming in the installation instructions

should be considered as a

lack of conformity of the goods.

Article 25

Legal rights –Liability for lack of conformity

The trader shall be liable to the consumer for any lack of conformity which exists at the time the

risk passes to the consumer.

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Article 26

Remedies for lack of conformity

Under the conditions

provided for in paragraphs 2 to 5, where the goods do not conform

to the contract, the consumer

shall be

is entitled to

have:

(a)

have the lack of conformity remedied by repair; or

(aa) the lack of conformity remedied by

replacement;

(b)

(c)

have the price reduced;

have the contract rescinded

terminated.

The trader shall remedy the lack of conformity by either repair or replacement according to

his

the

choice

of the consumer. During a period of fifteen days from the day of delivery

the consumer may also terminate the contract, unless the trader, after the contract has

been terminated, would have difficulties reselling the goods and:

(a)

(b)

(c)

the goods are perishable;

the goods are manufactured, produced or especially ordered for the consumer; or

the consumer should have discovered the lack of conformity before carrying out an

act inconsistent with returning the goods.

Where

the remedy chosen by the consumer is repair or replacement and

the trader has

proved that remedying the lack of conformity

according to the choice of the consumer

repair or replacement is unlawful, impossible or would cause the trader a disproportionate

effort, the consumer

shall be offered the other of those two remedies. In the event that

both of those remedies are unlawful, impossible or would cause the trader a

disproportionate effort, the consumer

may choose to have the price reduced or,

if the lack

of conformity is not minor,

the contract rescinded

terminated.

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3a.

A trader's effort is disproportionate if

where

it imposes costs on him which, in comparison

with the price reduction or the rescission

termination

of the contract, are excessive, taking

into account the value of the goods if

where

there was no lack of conformity and the

significance of the lack of conformity.

The consumer may only rescind the contract if the lack of conformity is not minor.

The consumer may resort to any remedy available under paragraph 1, where one of the

following situations exists:

(a)

(b)

the trader has implicitly or explicitly refused to remedy the lack of conformity;

the trader has failed

or, according to the objective circumstances, will fail

to remedy

the lack of conformity within a reasonable time;

(c)

the trader has tried to remedy the lack of conformity, causing significant inconvenience

to the consumer,

or if the trader, according to the objective circumstances, will not

be able to remedy the lack of conformity without causing significant inconvenience

to the consumer;

(d)

after repair,

[the same]/[a] defect has reappeared [re]appears more than once within a

short period of time.

Without prejudice to paragraph 2, the consumer may only terminate the contract under

this paragraph where the lack of conformity is not minor.

The significant inconvenience for the consumer and the reasonable time needed for the trader

to remedy the lack of conformity shall be assessed taking into account the nature of the goods

and

the purpose for which the consumer acquired the goods as provided for by Article

24(2)(b).

Article 27

Costs and damages

The consumer shall be entitled to have the lack of conformity remedied free of any costs.

The

consumer shall compensate the trader for the use of the defective goods only in cases

where the contract has been terminated and the consumer has benefited from the use of

the good.

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Without prejudice to the provisions of this Chapter, the consumer may

shall be able to

claim

damages

provided for by national law

for any loss not remedied in accordance with

Article 26.

Article 28

Time limits and burden of proof

The trader shall be held liable under Article 25 where the lack of conformity becomes

apparent within two years as from the time the risk passed to the consumer.

1a.

Where a good, in accordance with Article 24(2)(b) and (c), is not fit for a particular

purpose for which the consumer requires it or for the purposes for which goods of the

same type are normally used, the trader shall be held liable under Article 25 where the

lack of conformity becomes apparent within ten years as from the time the risk passed

to the consumer.

1b.

In the case of second-hand goods, the trader and the consumer may agree on a shorter

liability period, which may not be less than one year as from the time the risk passed to

the consumer.

[Partially former paragraph 3]

When the trader has remedied the lack of conformity by replacement, he shall be held liable

under Article 25 where the lack of conformity becomes apparent within two years as from the

time the consumer or a third party indicated by the consumer has acquired the material

physical

possession of the replaced goods.

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2a.

When the trader has remedied the lack of conformity by repair, the periods provided in

paragraph 1, 1a and 1b shall be extended by the period of time during which the goods

were not in the physical possession of the consumer due to the repair. However, if where

the consumer has not acquired failed to take reasonable steps to acquire the physical

possession of the goods after the repair because he has failed to take reasonable steps,

the extended period should the time thereafter shall not be counted up to the date, when

the consumer should have acquired the physical possession of the repaired goods in

accordance with the trader’s indication.

2b.

Where the trader has repaired the good according to Article 26 by replacement of parts,

the trader shall be held liable for the lack of conformity of the spare parts during a

period of six months after the repair, even if the remaining duration of his liability of the

main good is shorter than six months.

In the case of second-hand goods, the trader and the consumer may agree on a shorter liability

period, which may not be less than one year.

In order to benefit from his rights under Article 25, the consumer shall inform the trader of the

lack of conformity within

a reasonable time

two months from the date on which,

having

regard to all circumstances of the case after

has

detected the lack of conformity.

Unless proved otherwise, any lack of conformity which becomes apparent within six

twelve

months of the time when the risk passed to the consumer, shall be presumed to have existed at

that time unless this presumption is incompatible with the nature of the goods and

the

nature of the lack of conformity.

The trader shall not be entitled to rely on the provisions of paragraphs 1 to 5 where the

lack of conformity relates to facts of which the trader knew or could reasonably be

expected to have known and which he did not disclose to the consumer.

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Article 29

Commercial guarantees

A commercial guarantee shall be binding on the guarantor under the conditions laid down in

the guarantee statement. In the absence of the guarantee statement, the commercial guarantee

shall be binding under the conditions laid down in the advertising

commercial

communication

on the commercial guarantee.

In case of a difference between the guarantee statement and the commercial

communication, the one more favourable for the consumer shall prevail.

The guarantee statement shall be drafted in plain intelligible language and be legible. It shall

include the following:

(a)

legal rights of the consumer, as provided for in Articles 26

and 28,

and a clear statement

that those

legal

rights are not affected by the commercial guarantee,

(b)

set the contents of the commercial guarantee and the conditions for making claims,

notably

especially

the duration, territorial scope and the name and address of the

guarantor

and, if different from the guarantor, the name and address of a third

person where the commercial guarantee shall be claimed,

(c)

without prejudice to Articles 32 and 35 and Annex III(1)(j), set out, where applicable,

that the commercial guarantee cannot be transferred to a subsequent buyer.

If the consumer so requests,

The

trader shall make the guarantee statement available in a

durable medium.

Non-compliance with paragraph 2 or 3 shall not affect the validity of the guarantee.

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