Christian Fülla v Toolport GmbH.

• Jurisdiction: European Union
• Celex Number: 62018CJ0052
• ECLI: ECLI:EU:C:2019:447
• Docket Number: C-52/18
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 23 May 2019

Provisional text

JUDGMENT OF THE COURT (First Chamber)

23 May 2019 (*)

(Reference for a preliminary ruling — Consumer protection — Directive 1999/44/EC — Lack of conformity of the goods delivered — Article 3 — Right of the consumer to repair or replacement of the goods free of charge, within a reasonable time and without any significant inconvenience — Determination of where the consumer must make goods acquired under a distance contract available to the seller to be brought into conformity — Concept of bringing the goods into conformity ‘free of charge’ — Right of the consumer to rescind the contract)

In Case C‑52/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Amtsgericht Norderstedt (District Court, Norderstedt, Germany), made by decision of 27 December 2017, received at the Court on 29 January 2018, in the proceedings

Christian Fülla

v

Toolport GmbH

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, C. Toader, A. Rosas, L. Bay Larsen and M. Safjan (Rapporteur), Judges,

Advocate General: N. Wahl,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the German Government, by T. Henze, M. Hellmann, J. Möller and A. Berg, acting as Agents,

– the French Government, by D. Colas, J. Traband and A.-L. Desjonquères, acting as Agents,

– the European Commission, by N. Ruiz García and M. Noll-Ehlers, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 January 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 3 of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12).

2 The request has been made in proceedings between Mr Christian Fülla and Toolport GmbH, a company incorporated under German law, concerning a claim for reimbursement, of the purchase price of a tent, made by Mr Fülla in the exercise of his right to rescind the sale contract.

Legal context

European Union law

3 Under recitals 1 and 10 to 12 of Directive 1999/44:

‘(1) Whereas Article 153(1) and (3) [EC] provides that the Community should contribute to the achievement of a high level of consumer protection by the measures it adopts pursuant to Article 95 [EC];

...

(10) Whereas, in the case of non-conformity of the goods with the contract, consumers should be entitled to have the goods restored to conformity with the contract free of charge, choosing either repair or replacement, or, failing this, to have the price reduced or the contract rescinded;

(11) Whereas the consumer in the first place may require the seller to repair the goods or to replace them unless those remedies are impossible or disproportionate; whereas whether a remedy is disproportionate should be determined objectively; whereas a remedy would be disproportionate if it imposed, in comparison with the other remedy, unreasonable costs; whereas, in order to determine whether the costs are unreasonable, the costs of one remedy should be significantly higher than the costs of the other remedy;

(12) Whereas in cases of a lack of conformity, the seller may always offer the consumer, by way of settlement, any available remedy; whereas it is for the consumer to decide whether to accept or reject this proposal’.

4 Article 1 of that directive, entitled ‘Scope and definitions’, provides, in paragraph 1:

‘The purpose of this directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of consumer protection in the context of the internal market.’

5 Article 2 of that directive, entitled ‘Conformity with the contract’, provides in paragraph 1 thereof:

‘The seller must deliver goods to the consumer which are in conformity with the contract of sale.’

6 Article 3 of the directive, entitled ‘Rights of the consumer’, reads as follows:

‘1. The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.

2. In the case of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement, in accordance with paragraph 3, or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods, in accordance with paragraphs 5 and 6.

3. In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate.

A remedy shall be deemed to be disproportionate if it imposes costs on the seller which, in comparison with the alternative remedy, are unreasonable, taking into account:

– the value the goods would have if there were no lack of conformity,

– the significance of the lack of conformity,

and

– whether the alternative remedy could be completed without significant inconvenience to the consumer.

Any repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.

4. The terms “free of charge” in paragraphs 2 and 3 refer to the necessary costs incurred to bring the goods into conformity, particularly the cost of postage, labour and materials.

5. The consumer may require an appropriate reduction of the price or have the contract rescinded:

– if the consumer is entitled to neither repair nor replacement,

or

– if the seller has not completed the remedy within a reasonable time,

or

– if the seller has not completed the remedy without significant inconvenience to the consumer.

6. The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.’

7 Article 8 of Directive 1999/44, entitled ‘National law and minimum protection’, provides, in paragraph 2 thereof:

‘Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this directive, to ensure a higher level of consumer protection.’

German law

8 Directive 1999/44 was transposed into German law by way of amendments to the Bürgerliche Gesetzbuch (German Civil Code; ‘the BGB’). Article 269 of the BGB, entitled ‘Place of performance’, states:

‘1. Where no place of performance has been specified or is evident from the circumstances, in particular from the nature of the obligation, performance must be made in the place where the obligor had his residence at the time when the obligation arose.

2. If the obligation arose in the commercial undertaking of the obligor, the place of the commercial undertaking takes the place of the residence if the obligor maintained his commercial undertaking at another place.

3. From the sole circumstance that the obligor has assumed the costs of transport it may not be concluded that the place to which shipment is to be made is to be the place of performance.’

9 Article 439 of the BGB, entitled ‘Repair’, in the version applicable to the main proceedings, provided:

‘1. By way of subsequent performance, the purchaser may require the repair of the defect or the delivery of goods which are free from defect, according to his preference.

2. The seller shall bear the costs necessary for the purposes of subsequent performance, including in particular the costs of transport, carriage, labour and materials.

3. The seller may refuse the manner of subsequent performance chosen by the purchaser if such performance is possible only at disproportionate cost. In that regard, account must be taken in particular of the value that the goods would have if there were no lack of conformity, the significance of the lack of conformity, and whether the alternative remedy could be effected without significant inconvenience to the purchaser. In such cases the right of the purchaser shall be restricted to the alternative means of subsequent performance; this is without prejudice to the right of the seller also to refuse the alternative remedy, subject to the conditions laid down in the first sentence.

4. Where a seller delivers goods free from defects for the purposes of subsequent performance, he may require the purchaser to return the defective goods pursuant to Paragraphs 346 to 348.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10 On 8 July 2015, Mr Fülla bought from Toolport, by telephone, a tent measuring five metres by six.

11 After the tent was delivered to Mr Fülla’s place of residence, 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. For its part, Toolport rejected Mr Fülla’s complaints regarding the lack of conformity of the tent, regarding them as unfounded. At the same time, it failed to inform Mr Fülla 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.

12 At that stage, the parties did not discuss the place where the tent was to be brought into conformity. Furthermore, the contract concluded between the parties did not make any provision in that regard.

13 In those circumstances, Mr Fülla requested the rescission of the contract and reimbursement of the purchase price of the tent as consideration for his returning the item.

14 Since Toolport failed to comply with that request, Mr Fülla brought an action before the Amtsgericht Norderstedt (Local Court, Norderstedt, Germany).

15 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...