Netherlands, Court of Appeal Arnhem-Leeuwarden, 21 July 2015

Identification of the case

• Articles 7:5(1), 7:17(1), 7:18(2) and 7:23 Burgerlijk Wetboek (Dutch Civil Code)

• Directive 1999/44/EC on sale of consumer goods and associated guarantees

Summary of the case

Ms F. bought a used Range Rover (a car) for € 7,002 from a company called ‘Hazet’ on the 27th of May 2008. The car was delivered the same day, and the agreement was put into writing in a (preprinted) document. On the 26th of September 2008, the car caught fire on the highway and completely burnt out on the side of the road. F. at the time was travelling to a work appointment and was in the company of her daughter. She claims that the selling party, Hazet, is liable for the damage to the car caused by the fire. However, Hazet’s defence is that F. had complained too late as a result of which she has forfeited all her claims (Article 7:23(1) BW).

• Civil judicial enforcement

Claim for damages because of non-conformity of the car (Art. 7:17 BW).

The Court of Appeal raised the question whether it had a duty to ex officio assess whether F. had acted as a consumer and would, thus, be able to rely on the consumer protection offered by Dir. 1999/14 as implemented in Art. 7:18(2) BW (presumption of non-conformity if the defect manifests itself within 6 months after the purchase). The CJEU determined that this was the case, as soon as the national court had at its disposal the matters of law and of fact that are necessary for that purpose or may have had them at its disposal simply by making a request for clarification.

Following the CJEU’s judgment, the Court of Appeal invited the parties for a session in which they could reply to the consequences of the CJEU’s decision and to a number of specific questions of the Court of Appeal regarding the facts surrounding the conclusion of the sales contract.

The case was discontinued.

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

There is no explicit reference to the Charter.

• Right to an effective remedy before a tribunal

Although no explicit reference is made to Charter provisions, F. fits within a line of CJEU case law in which the Court has interpreted the goal of consumer protection in a broad manner (reference is to the case law on the ex officio assessment of standard terms under Dir. 93/13/EEC). This could be considered to be in line with Articles 38 and 47 of the Charter, which guarantee the right to an effective remedy in consumer cases.

• Equivalence
• Effectiveness

Summary of the role played by the principle of equivalence in the case

CJEU F., para. 39 and 40:

‘In the same way that, within the context of the detailed procedural rules of its domestic legal order, the national court is called upon, for the purpose of identifying the applicable rule of national law, to classify the matters of law and of fact which the parties have submitted to it, if necessary by requesting the parties to provide any useful details, it is required, in accordance with the principle of equivalence, to carry out the same process for the purpose of determining whether a rule of EU law is applicable.

That may be the case in the main proceedings, in which the national court has, as it itself stated in the order for reference, an “indication”, in the present case the production by Ms F. of a document entitled “contract of sale to a private individual”, and in which, pursuant to Article 22 of the Rv, that court is able, as the Netherlands Government has pointed out, to order the parties to explain certain claims or to produce certain documents. It is for the national court to undertake the investigations for that purpose.’

Summary of the role played by the principle of effectiveness

CJEU F., para. 44-46:

‘Detailed procedural rules which, as may be the case in the main proceedings, would prevent both the court at first instance and the appellate court, before which a guarantee or warranty claim based on a contract of sale has been brought, from classifying, on the basis of the matters of fact and of law which they have at their disposal or may have at their disposal simply by making a request for clarification, the contractual relationship in question as a sale to a consumer, if the consumer has not expressly claimed to have that status, would be tantamount to making the consumer subject to the obligation to carry out a full legal classification of his situation himself, failing which he would lose the rights which the EU legislature intended to confer on him by means of Directive 1999/44. In a field in which, in a number of Member States, the rules of procedure allow individuals to represent themselves before the courts, there would be a real risk that the consumer, particularly because of a lack of awareness, would not be able to satisfy such a level of requirements.

It follows that detailed procedural rules such as those described in the preceding paragraph would not comply with the principle of effectiveness inasmuch as they would make the application of the protection which Directive 1999/44 seeks to confer on consumers excessively difficult in actions to enforce a warranty or guarantee which are based on a lack of conformity and to which those consumers are parties.

Rather, the principle of effectiveness requires a national court before which a dispute relating to a contract which may be covered by that directive has been brought to determine whether the purchaser may be classified as a consumer, even if the purchaser has not expressly claimed to have that status, as soon as that court has at its disposal the matters of law and of fact that are necessary for that purpose or may have them at its disposal simply by making a request for clarification.’

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.

Clarification of implications of EU law for the court’s duty to ex officio assess whether a person had acted as a consumer when concluding a sales contract. Clarification of the consumer’s obligations regarding the duty to notify the seller of the damage.

Implementation in Dutch judicial practice.

Additional notes on the decision