No To A Greater Extent Than Faber Fortunae Suae: The Eu Consumer’S Condition Later On Faber 5 Hazet

Luigi Lonardo, PhD candidate, King's College London

Background

Are buyers of retail goods "consumers" fifty-fifty when they make non claim this status? According to the findings of the First Chamber of the Court of Justice inwards case C-497/13 Faber the respond is yes.- Purchasers are consumers, whether they know it or not,provided they conclude the contract non for concern or professional person reasons.

The Court has ruled that a national approximate is required to investigate on its ain motion whether, inwards relation to a contract, the purchaser is a 'consumer'. Therefore, the protection of European Union consumer constabulary applies independently from the party's reliance on this status. Moreover, if a lack of conformity inwards a production becomes apparent inside 6 months from the delivery, this is presumed to receive got existed at the fourth dimension of delivery. The conclusions reached past times the Court are inwards describe alongside the high measure of consumer protection inwards European Union constabulary too confirm the instance constabulary which tends to lighten the burden of proof of the consumer. This should come upward every bit goodness intelligence for millions of European purchasers. However, the Court could receive got adopted a to a greater extent than nuanced approach that would receive got led to a to a greater extent than balanced outcome.

The Court was asked to translate Directive 1999/44 on consumer goods too related guarantees ("the Directive"). In particular, it was asked to translate Article 5(2), which grants Member States liberty to furnish that, inwards lodge to make goodness from his rights, the consumer must inform the seller of a lack of conformity of the goods inside ii months from discovering it, too Article 5(3), which provides that whatsoever such lack of conformity which becomes apparent inside 6 months of delivery of the goods shall survive presumed to receive got existed at the fourth dimension of delivery - too the presumption tin lavatory survive rebutted.

The facts of the instance

In May 2008 Faber bought from Hazet garage a second-hand motorcar which, inwards September of the same year, caught burn downwards too was completely destroyed. In Jan 2009, Ms Faber informed past times telephone the seller’s garage that she was asset it liable. It is disputed if Faber had informed Hazet garage of the accident earlier this date. The seller denied liability.

Ms Faber hence started proceedings against Hazet garage. Two facts are noteworthy: Faber did non rely on her consumer status, too at this phase a technical investigation to ascertain the crusade of the burn downwards could non receive got house every bit the motorcar had been scrapped inwards the meantime. The Dutch courtroom rejected Faber's claims on the grounds that she solely informed Hazet to a greater extent than than iii months later on the accident – also late, nether Dutch constabulary (Article 7:23 Netherlands civil code). 

The Gerechtshof (Regional Court of Appeal) Arnhem-Leeuwarden, earlier which the dispute was brought on appeal, decided to refer questions to the Court of Justice for a preliminary ruling.

The questions referred too the judgment

Following the opinion of Advocate General Sharpston, the Court dealt alongside the 7 questions asked past times the referring courtroom past times dividing them into ii sets:

1.      Can a national courtroom examine past times its ain motion whether a purchaser is a consumer?

2.      When too how should the consumer's duty to inform the seller of a lack of conformity of the goods survive exercised?

As a preliminary remark, it is noticed that the Court expressed its views on the Directive fifty-fifty though the dispute inwards the master copy proceeding was betwixt private parties. It did so because national Courts are required to translate domestic constabulary inwards the calorie-free too work of the "applicable directive" (para 33). In the nowadays case, the Dutch constabulary was a straight implementation of Directive 1999/44.

1.      A courtroom tin lavatory inquire the consumer condition ex officio

In the contract at issue, the Dutch judges were inwards uncertainty on the provisions applicable, because it was non known whether it was concluded alongside a consumer. The Court ruled that the condition of consumer tin lavatory survive examined past times the national courtroom on its ain motion fifty-fifty though the political party has non relied on that condition (para 48). What's more, this condition tin lavatory survive declared past times a courtroom fifty-fifty inwards appeal proceedings where the purchaser had non raised whatsoever electrical charge against the judgment of the courtroom of origin instance.

The Court considered that "in the absence of harmonisation of procedural rules, the detailed procedural rules governing actions for safeguarding an individual’s rights nether European Union constabulary are a affair for the domestic legal lodge of the Member States, provided, however, that they are no less favourable than those governing like domestic actions (principle of equivalence) too make non buy the farm far inwards do impossible or excessively hard to exercise the rights conferred on consumers past times European Union constabulary (principle of effectiveness)". It reasoned every bit follows.

On the regulation of equivalence (para 38): the ordinary describe of judges is to assign a legal classification to the province of affairs brought earlier them. This, the Court argues, is non inwards itself the exercise of a discretion, but exactly the legal reasoning of a judge. Since Dutch courts are required to form out matters of constabulary too facts eg according to procedural rules, the same should come about for the definitions of European Union constabulary (para 39). The regulation of effectiveness would solely demand to survive considered if in that place was no regulation of equivalence. However, the Court expresses its take in on it (para 41). It refers to the established regulation that national constabulary must ensure that it is non also hard for European Union citizens to exercise the rights conferred on consumers past times European Union law. This regulation is justified, inwards the Court's view, "on the thought that the consumer is inwards a weak seat vis à vis the seller or supplier".

2.      Provisions on communications too burden of proof of the consumer

The Court too then analysed Article 5(3) of the Directive: lack of conformity of a production is presumed when it becomes apparent inside 6 months of the delivery. The Court considered that the organisation of liability established past times the Directive is necessary because it would survive impossible for the consumer to attempt that a lack of conformity existed at the fourth dimension of delivery (para 54). Hence, "[i]n take in of the nature too importance of the world involvement underlying the protection which Article 5(3) of Directive 1999/44 confers on consumers, that provision must survive regarded (…) every bit a dominion of world policy. It follows that where, nether its domestic legal system, it has a discretion every bit to whether to apply such a dominion of its ain motion, the national courtroom must of its ain motion apply whatsoever provision of its domestic constabulary which transposes Article 5(3)" (para 56).

Furthermore, it is asked what the purchaser has to attempt when the lack of conformity is communicated inside ii months. In calorie-free of the travaux préparatoires of the Directive, the provision that the consumer must inform the seller of the lack of conformity ‘does non constitute a strict obligation to comport out a detailed inspection of the good’. Furthermore, crucially, "[t]he consumer is required to attempt solely that the lack of conformity exists. He is non required to attempt the crusade of that lack of conformity or to constitute that its origin is attributable to the seller" (par 70).

  

Comments

·         Is the consumer so weak?

Nowhere does the Directive say that judges tin lavatory constitute on their ain motion whether the directive applies a instance pending earlier them. The Court based its conclusion to allow national judges to constitute on their ain motion the condition of consumer also on the regulation of effectiveness. That is, the assumed weakness of consumers (see para 59 of the AG opinion), every bit affirmed inwards the instance constabulary on diverse consumer directives (Mostaza Claro, Rampion too Gordard). However, inwards Duarte Hueros AG Kokott introduced a sensible distinction. One number is the consumer at the phase of bargaining: at this fourth dimension he or she deserves protection. After the conclusion of the contract, it is a dissimilar issue: hither in that place is no exceptional ground to consider the consumer every bit the weaker political party anymore. This take in is of exceptional involvement because it is extremely equilibrated. Possibly, since it is to a greater extent than nuanced, it is fifty-fifty to survive preferred to the reasoning of the court. It would avoid oversimplifying the seat of the consumer too would Pb to dissimilar conclusions.

AG Sharpston, who shares Kokott's take in that "the ii sets of consumers are non inwards the same position" (para 60),  argues nonetheless that the consumer is weaker fifty-fifty later on the contract is concluded because in that place is asymmetry of information. In other words, it is easier for the seller to attempt the crusade of a lack of conformity. Therefore a dominion of world policy that creates the obligation to investigate is justified. Moreover, she adds, the rationale also applies whatsoever fourth dimension in that place is the demand to protect a weaker political party (eg inwards instance of workers). The Court did address this possible distinction, but limited itself to acknowledging that "In a land inwards which, inwards a number of Member States, the rules of physical care for allow individuals to stand upward for themselves earlier the courts, in that place would survive a existent adventure that the consumer, specially because of a lack of awareness, would non survive able to satisfy" the requirements of claiming consumer status. While this declaration may survive appealing, it is a policy pick that is rather sweeping: first, non inwards all Member States it is possible for individuals to stand upward for themselves inwards affair of consumer law. Second, if this is the ratio, why is in that place no deviation when the private is truly assisted past times a lawyer, every bit the referring Dutch courtroom had expressly asked?

·         A high measure of consumer protection is ensured because the consumer solely has to attempt the beingness of the lack of conformity

The consumer has really fiddling to attempt indeed: solely the beingness of a lack of conformity, non the causes, nor that such a lack is imputable to the seller. Of course, the presumption tin lavatory survive rebutted but this agency that the onus is on the seller/supplier. While the Court assumed that the European Union legislator decided to apportion the burden of proof inwards these price for solid reasons, it is questionable whether the continuous extensive interpretation given past times the CJEU volition save the fair apportionment provided for past times the consumer Directives. Indeed inwards a recent judgment, Boston Scientific, the Court had already reached a like conclusion of presumption of defect. Even though that instance was nearly defective products (not whatsoever full general lack of conformity) too to a greater extent than specifically nearly medical devices implantable inwards the human body, the final result is the same. The high measure of protection is hence ensured – perchance at the expense of the sellers/producers- past times lightening the burden of proof for the consumer. The adventure of the conveyance, then, is on the producer or seller/supplier[1].

  

A farther chemical constituent is worth noting: to a greater extent than or less European Union legal systems foresee the chance of a technical study to ascertain, for example, the causes of defects or lack of conformity inwards products. If the consumer does non demand to attempt these, nonetheless in that place is no demand to summon an expert- ie to pay for its work. Legal activity volition hence survive smoother too easier to start.

Conclusion

The Decision reaffirms the high grade of consumer protection inwards European Union Law which the Court has expressed inwards its recent instance law. In particular, the Court has found that a courtroom is required to investigate on its ain motion whether a purchases is a consumer, independently from him or her relying on this status. Therefore European Union consumer constabulary automatically applies to the buyer who purchases goods for private work – on the Earth that the purchaser is a "weak" party, worthy of protection.. As explained inwards Faber, for example, these rights imply that a consumer should exactly inform the seller of the lack of conformity of a production inside ii months of its discovery- the communication needs non to survive burdensome for the consumer. Moreover, every bit far every bit the burden of proof, the consumer is solely required to attempt the beingness of the lack of conformity of a goodness that is has purchased, if this lack appears inside 6 months from delivery.

Photo credit: Daily Telegraph

Barnard & Peers: chapter 23

---

[1]               See Maria Castellaneta, "The companionship shall pay for the damages occurred inside 6 months", Il Sole 24 Ore, Fri 5^th June, 46.

Share this post