Any lack of conformity of a purchased product with the description given at the time of purchase which becomes apparent within six months from delivery of the goods, is presumed to have existed at the time of delivery, the Court of Justice of the European Union recently affirmed. The consumer is under no obligation to prove that this is in actual fact the case.
EU law seeks to ensure that consumers are protected should the product which they purchase be defective and does not conform to the description given at the time of purchase. Goods are deemed to be in conformity if, at the moment of delivery to the consumer, they are fit for the purpose for which they are normally used or for any particular purpose for which the consumer requires them and which purpose was made known to the seller prior to purchase.
Furthermore, the quality and performance of the goods must be satisfactory, taking into consideration the nature of the goods and any public statements made about them by the seller. They must also comply with the description given by the seller and possess those qualities which the seller presented to the consumer as a sample or model of the product purchased.
The facts of this particular case which came before the Court of Justice of the European Union were briefly as follows. A consumer purchased a second-hand vehicle at a garage. The vehicle later caught fire and was completely destroyed. It was towed to the seller’s garage and then, at the request of the garage itself, to a scrapyard to be kept there.
The consumer informed the seller that she was holding him liable. A technical investigation into the cause of the fire could not take place as the vehicle had in the meantime been scrapped. In the course of proceedings filed by the consumer before the courts of Netherlands, a preliminary reference to the CJEU was made by the latter courts requesting guidance as to how EU law related to guarantees ought to be interpreted when applied to the particular case before them.
The consumer is not required, at such stage, to provide evidence that the lack of conformity actually adversely affects the goods purchased
The CJEU primarily examined whether it was permissible for national law to oblige the consumer to prove that he informed the seller of the lack of conformity in good time. According to the law of Netherlands, the consumer is obliged to prove, if he is challenged by the seller, that he informed the latter of the lack of conformity of the goods delivered. He should do so within a period of two months from the discovery of the lack of conformity.
The CJEU observed that EU law permits member states to provide in their national laws that the consumer must, in order to benefit from his rights, inform the seller of the lack of conformity within a period of two months from the date on which he detected such lack of conformity.
However, the Court continued to explain, that such an obligation is limited to that of informing the seller that a lack of conformity exists. The consumer is not required, at such stage, to provide evidence that the lack of conformity actually adversely affects the goods purchased or to state the precise cause of such lack of conformity. The notification must, however, include a number of details, which vary depending on the specific circumstances of each case.
The Court then proceeded to note that EU law mitigates the burden of proof borne by the consumer should the lack of conformity become apparent within six months of delivery of the goods. In all such cases, the lack of conformity is presumed to have existed at the time of delivery.
This does not mean that the consumer does not need to prove anything. He must primarily prove that the goods sold are not in conformity with the contract because, for example, they do not have the qualities agreed upon with the seller. What the consumer also needs to prove is that the lack of conformity became physically apparent within six months of delivery of the goods. The consumer is not, however, required to prove the cause of such lack of conformity or that it is attributable to the seller.
Once he has proven these facts, the consumer is relieved of the obligation of establishing that the lack of conformity existed at the time of delivery of the goods. It is then for the seller to provide evidence that the lack of conformity did not exist at the time of delivery of the goods, by proving that the cause or origin of the non-conformity is attributable to an act or omission on the part of the purchaser which took place after the delivery of the product.
The CJEU has in this case provided clear guidance as to how EU rules regulating the onus of proof relating to legal guarantees in contracts of sale ought to be interpreted. Such rules are often the source of much debate whenever proceedings between a seller and a buyer are filed before national courts or tribunals and any clarifications given by the CJEU on the matter will serve to expedite litigious proceedings.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.