Germany, District Court, Norderstedt , 27 December 2017

Identification of the case

• Bürgerliche Gesetzbuch (“BGB’). Articles 269 and 439

• Article 3 Directive 1999/44/EC

Summary of the case

On 8 July 2015, Mr F. bought from Toolport, by telephone, a tent. After the delivery, he found that the tent was not in conformity and thus asked Toolport to bring it into conformity at his residence. He neither returned it to Toolport nor proposed to do so.

Toolport rejected Mr F.’s complaints regarding the lack of conformity of the tent, regarding them as unfounded. At the same time, it failed to inform Mr F. that the tent had to be returned to Toolport’s place of business and did not offer to advance the cost of that return to him. Mr F. requested the rescission of the contract and reimbursement of the purchase price of the tent as consideration for his returning the item. Since Toolport failed to comply with that request, Mr F. brought an action before the Amtsgericht Norderstedt (Local Court, Norderstedt, Germany). During the proceedings before that court, Toolport claimed, for the first time, that its place of business was the place where the item in question was to be brought into conformity.

The referring court points out that, in the light of the case-law of the Bundesgerichtshof (Federal Court of Justice, Germany), Article 269 of the BGB (implementing Directive 1999/44) must be interpreted as meaning that, in the present case, the consumer is required to place the item in question at the disposal of the seller at its place of business, so that it may be brought into conformity. Nevertheless, the referring court expresses doubts as to the compatibility of such an interpretation with Directive 1999/44, stating that, having regard to the characteristics of the item in question, the organisation of the transport is likely to be a ‘significant inconvenience’ for the consumer within the meaning of Article 3(3) of that directive.

The national court is thus asking what implications Article 3(3) of Directive 1999/44 has with regard to the place in which the good should be brought into conformity and also whether the term “free of charge” of Article 3(2) of the same directive should be interpreted as imposing an obligation on the seller to pay the costs of transporting the defective goods, for the purposes of bringing them into conformity.

• Civil judicial enforcement

Ensure the right of the consumer to rescission of the contract

1. Is the third subparagraph of Article 3(3) of Directive 1999/44/EC to be interpreted as meaning that a consumer must in all cases offer goods acquired under a distance contract to an undertaking in order to enable repair or replacement only at the place where the goods are located?

2. If Question 1 is answered in the negative: Is the third subparagraph of Article 3(3) of Directive 1999/44 to be interpreted as meaning that a consumer must in all cases offer goods acquired under a distance contract to an undertaking in order to enable repair or replacement at the undertaking’s place of business?

3. If Question 2 is answered in the negative: What criteria can be derived from the third subparagraph of Article 3(3) of Directive 1999/44 as regards how to specify the place where the consumer must offer goods acquired under a distance contract to the undertaking in order to enable repair or replacement?

4. If the place where the consumer must offer goods acquired under a distance contract to an undertaking for examination and to enable repair is — in all cases or in this specific case — the undertaking’s place of business: Is it compatible with the first subparagraph of Article 3(3) of Directive 1999/44, in conjunction with Article 3(4) thereof, for a consumer to have to pay the costs of outward and/or return transport, or does it follow from the requirement ‘to repair free of charge’ that the seller is required to make an advance payment?

5. If the place where the consumer must offer goods acquired under a distance contract to an undertaking for examination and to enable repair is — in all cases or in this specific case — the undertaking’s place of business and a requirement for the consumer to pay costs in advance is compatible with the first subparagraph of Article 3(3) of Directive 1999/44, in conjunction with Article 3(4) thereof: Is the third subparagraph of Article 3(3) of Directive 1999/44, in conjunction with the second indent of Article 3(5) thereof, to be interpreted as meaning that a consumer who has merely notified a defect to the undertaking is not entitled to have a contract rescinded without offering to transport the goods to the place where the undertaking is located?

6. If the place where the consumer must offer goods acquired under a distance contract to an undertaking for examination and to enable repair is — in all cases or in this specific case — the undertaking’s place of business and a requirement for the consumer to pay costs in advance is not compatible with the first subparagraph of Article 3(3) of Directive 1999/44, in conjunction with Article 3(4) thereof: Is the third subparagraph of Article 3(3) of Directive 1999/44, in conjunction with the second indent of Article 3(5) thereof, to be interpreted as meaning that a consumer who has merely notified a defect to the undertaking is not entitled to have a contract rescinded without offering to transport the goods to the place where the undertaking is located?’

With regard to the first three questions the Court pointed out how Article 3 of Directive 1999/44 seeks to strike a fair balance between the interests of the consumer and the seller. Article 3(3) of the Directive and the triple requirement that any repair or replacement must be made free of charge, within a reasonable time and without significant inconvenience to the consumer is the expression of the intention of the EU legislature to ensure complete and effective protection for the consumer. The main objective of Directive 99/44 is to guarantee a uniform minimum level of consumer protection.

Therefore the Court concluded that, whereas the Member States remain competent in establishing the place where the consumer is required to make goods acquired under a distance contract available to the seller, for them to be brought into conformity, the national court may have to make an interpretation , if necessary, amending established case-law if that law is based on an interpretation of national law which is incompatible with the objectives of that directive.

With regard to the fourth question the Court established that the striking of a balance between the interests of the consumer and of the seller which Directive 1999/44 seeks to achieve does not require that the obligation on the seller to bring the goods into conformity free of charge also include, beyond the obligation on the seller to reimburse to the consumer the cost of transporting that property to the seller’s place of business, the obligation to systematically advance those costs to the consumer. Such an obligation may in fact amount to an excessive burden on the seller and therefore, be disproportionate.

When addressing the fifth and sixth question the Court recalled the clear sequence of implementation of remedies to which the consumer is entitled in the event of non-conformity of the goods:

‘the consumer may, in the first place, require the seller to repair the goods or to replace them, unless this is impossible or disproportionate. It is only if the consumer is entitled to neither repair nor replacement of the goods not in conformity or if the seller has failed to implement one of those remedies within a reasonable time or without significant inconvenience to the consumer that the consumer may, under Article 3(5) of that directive, require the rescission of the contract, unless, in accordance with Article 3(6) of Directive 1999/44, the lack of conformity of the goods is minor.’

The Court then assessed the facts of the case: the consumer had explicitly informed the vendor of the non-conformity of the goods, the transport of which to the seller’s place of business was likely to cause a significant inconvenience to him, and the consumer had made the goods available to the seller at his home for them to be brought into conformity. The seller had failed to take any adequate steps to bring those goods into conformity, including that of informing the consumer of the place where those goods are to be made available to it for it to bring them into conformity.

In light of the circumstances, taking into account that whilst the consumer had satisfied the obligation of diligence imposed on him by Directive 1999/44, the seller had not, the Court decided that it was for the national court to ensure the right of that consumer to rescission of the contract.

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

• Effectiveness
• Proportionality

Effectiveness was taken into consideration when considering that, in order to correctly interpret the meaning and implications of Article 3 Directive 199/44/EC, one must bear in mind that the intent of the provision is to assure that the consumer is granted complete and effective protection.

The Court referenced the principle of proportionality when determining the correct meaning of “free of charge” whiting the context of Article 3 Directive 1999/44/EC and when assessing what constitutes a “proportionate remedy” in the context of such business-consumer transactions.

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

Preliminary reference

Conform interpretation with EU law as interpreted by the CJEU

Correct a trend of incompatible interpretation of EU law within national case law

Disregarding and amending, if necessary, previous national case law where incompatible with the interpretation of Directive 199/44 as established by the CJEU

Additional notes on the decision