Case summary

Deciding Body
Court of Appeal of Mons
Cour d’Appel de Mons
Belgium
National case details
Date of decision: 22.02.16
Instance: Appellate on fact and law
Case status: Pending
Area of law
Consumer protection
Defective goods (consumer sale)

Safeguards for access to justice
Right to an effective remedy before a tribunal
Preliminary ruling
Judgement of the CJEU (Fifth Chamber), 13 June 2017, Case C-133/16 C. F. v JPC Motor SA

Life-cycle diagram

  1. 22 February 2016

    Court of Appeal of Mons, request preliminary ruling

  2. 13 July 2017

    CJEU, Case C‑133/16

Identification of the case

National law sources
  • Article 1649 quater of the Civil Code
EU law sources
  • Articles 5(1) and 7(1) of Directive 1999/44

Summary of the case

Facts of the case

On 21 September 2010, Mr F., a Dutch national residing in Belgium, purchased a secondhand car from JPC Motor. On the 22 of September an issue was detected with the vehicle since its registration was refused by the Vehicle Registration Department. On 7 October Mr F. notified JPC Motor that the vehicle had a “hidden functional defect”, claiming lack of conformity. He gave formal notice to take the vehicle back and reimburse the sale price. It then became apparent that it was not the vehicle itself but the vehicle’s documents that were defective. Accordingly, the vehicle bought by Mr F. was duly registered by DIV on 7 January 2011.

On 21 October 2011, Mr F.’s adviser put JPC Motor on formal notice to pay compensation to his client for the damage sustained as a result of the lack of conformity. Since JPC Motor disputed the claim for compensation, contending that it was out of time, Mr F. initiated legal proceedings against that company on 12 March 2012 before the tribunal de commerce de Mons (Commercial Court, Mons, Belgium).

By judgment of 9 January 2014 the tribunal dismissed Mr F.’s application. On 3 April 2014, Mr F. brought an appeal against that judgment before the cour d’appel de Mons (Court of Appeal, Mons, Belgium). On 8 June 2015, the Court found that the vehicle sold lacked conformity within the meaning of Article 1649 bis et seq. of the Civil Code, but that the lack of conformity appeared to have been resolved following registration of the vehicle.

However, the Court ordered, of its own motion, that the hearing be reopened in order to allow the parties to make submissions, inter alia, on whether the action was time barred, the issue being that, according to the agreement of the parties and in accordance with article 1649 quarter of the Civil Code, the limitation period for action by the consumer seemed to have expired before the two year period as from delivery of the second-hand goods.

The referring Court noticed how that interpretation of article 1649 could be possibly incompatible with Directive 1999/44, in particular with Article 5(1) and the second subparagraph of Article 7(1).

In those circumstances, the cour d’appel de Mons (Court of Appeal, Mons) decided to stay the proceedings and to refer the issue to the Court of Justice for a preliminary ruling.

Measures, actions, remedies claimed/applied

Ensure the right of the consumer to a two-year “limitation period” for action against the producer in case of defective goods, even with regard to second-hand goods.

Preliminary questions

‘Must Article 5(1) of Directive 1999/44 …, in conjunction with the second subparagraph of Article 7(1) thereof, be interpreted as precluding a provision of national law which is interpreted as allowing, for second-hand goods, the limitation period for action by the consumer to expire before the end of the two-year period as from delivery of goods which are not in conformity with the contract, where the seller and the consumer have agreed on a guarantee period of less than two years?

Reasoning (legal principles applied)

In its decision the Court clarified the distinction between two types of time limits provided for by Article 5(1) of Directive 1999/44: ‘on the one hand, there is the time limit referred to in the first sentence of Article 5(1) of the directive, namely the period of liability of the seller, which refers to the period during which the seller is liable under Article 3 of the directive where a lack of conformity of the goods at issue becomes apparent and, accordingly, this gives rise to the rights set out in that article in favour of the consumer. The duration of the period of liability of the seller is, as a rule, two years from the time of delivery of the goods. On the other hand, the time limit referred to in the second sentence of Article 5(1) of the directive is a limitation period corresponding to the period of time during which the consumer can actually exercise the rights that arose in the period of liability of the seller, with regard to the latter’.

Whether to impose a limitation period for action by the consumer is a matter for national legislation, however the mandatory minimum duration of that period must always be, as a rule, at least two years from the time of delivery of the goods concerned. The wording of the first subparagraph of Article 7(1) of the directive, read in the light of recital 7 thereof, also confirms the binding nature of that general minimum duration in so far as, under that provision, the parties cannot, as a rule, derogate from it by means of an agreement and Member States must ensure that it is complied with.

The Court also pointed out how in the German language version, the wording of the second subparagraph of Article 7(1) of Directive 1999/44 is even more explicit in that regard.

A national rule such as that at issue in the main proceedings, which would allow the limitation period afforded to consumers to be shortened as a consequence of the reduction of the period of liability of the seller to one year, would result in a lesser level of consumer protection. The Court emphasized how, in that case, the consumer would be deprived of the exercise to the full extent of the legal remedies granted by EU law. The national law provision must, therefore, be interpreted in conformity with the Directive.

Implementation of preliminary ruling

not available

Role of the Charter and role of the general principles on enforcement

Safeguards for access to justice
  • Right to an effective remedy before a tribunal
Relevance of CFREU and ECHR articles or related rights

The Court noted that the second sentence of Article 5(1) of the directive guarantees to the consumer a period of two years to avail him/herself of the legal remedies granted by EU law. Therefore, a national law shortening that minimum period would affect the consumer’s right to an effective remedy. (From point 93 of the Opinion of the Advocate General)

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU and National court (preliminary reference)
Dialogue techniques

Preliminary reference

Conform interpretation with EU law as interpreted by the CJEU

Purposes of using judicial dialogue

Solve an incompatibility between national law and EU law

Expected effects of judicial dialogue

Apply the correct interpretation of Article 1649 of the Civil Code, in conformity with the correct meaning of Directive 1999/44

Additional notes on the decision

External links

Case author

Comparative, European and International Legal Studies Student Silvia Ciacchi, University of Trento

Published by Silvia Ciacchi on 15 October 2019