Froukje Faber v Autobedrijf Hazet Ochten BV.

• Jurisdiction: European Union
• Celex Number: 62013CJ0497
• ECLI: ECLI:EU:C:2015:357
• Date: 04 June 2015
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-497/13

JUDGMENT OF THE COURT (First Chamber)

4 June 2015 ( *1 )

‛Reference for a preliminary ruling — Directive 1999/44/EC — Sale of consumer goods and associated guarantees — Status of the purchaser — Consumer status — Lack of conformity of the goods delivered — Duty to inform the seller — Lack of conformity which became apparent within six months of delivery of the goods — Burden of proof’

In Case C‑497/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Gerechtshof Arnhem-Leeuwarden (Netherlands), made by decision of 10 September 2013, received at the Court on 16 September 2013, in the proceedings

Froukje Faber

v

Autobedrijf Hazet Ochten BV,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, S. Rodin, A. Borg Barthet, M. Berger (Rapporteur) and F. Biltgen, Judges,

Advocate General: E. Sharpston,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 11 September 2014,

after considering the observations submitted on behalf of:

— Autobedrijf Hazet Ochten BV, by W. van Ochten, advocaat,

— the Netherlands Government, by M. Bulterman, C. Schillemans and J. Langer, acting as Agents,

— the Belgian Government, by T. Materne and J.-C. Halleux, acting as Agents,

— the Austrian Government, by C. Pesendorfer, acting as Agent,

— the European Commission, by M. van Beek, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 27 November 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 1(2)(a) and 5 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 Ms Faber and Autobedrijf Hazet Ochten BV (‘the Hazet garage’) concerning a claim for compensation for the damage caused by the lack of conformity which allegedly marred the vehicle that Ms Faber purchased at the Hazet garage.

Legal context

EU law

3 Article 1(2)(a) of Directive 1999/44 defines the concept of ‘consumer’ as referring to ‘any natural person who, in the contracts covered by this Directive, is acting for purposes which are not related to his trade, business or profession’.

4 Article 2(1) and (2) of that directive provides: ‘1. The seller must deliver goods to the consumer which are in conformity with the contract of sale. 2. Consumer goods are presumed to be in conformity with the contract if they: (a) comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model; (b) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted; (c) are fit for the purposes for which goods of the same type are normally used; (d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.’

5 Article 3 of Directive 1999/44, entitled ‘Rights of the consumer’, provides in paragraph 1 that ‘[t]he seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered’.

6 Article 5 of that directive, which relates to time-limits, is worded as follows: ‘1. The seller shall be held liable under Article 3 where the lack of conformity becomes apparent within two years as from delivery of the goods. … 2. Member States may provide that, in order to benefit from his rights, the consumer must 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. … 3. Unless proved otherwise, any lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity.’

7 Article 7 of Directive 1999/44 states that the provisions of that directive are binding in nature and that, in particular, any contractual terms which directly or indirectly restrict the rights resulting from it are, as provided for by national law, not to be binding on the consumer.

Netherlands law

Substantive law

8 Article 7:5(1) of the Netherlands Civil Code (Burgerlijk Wetboek, ‘the BW’) defines the sale of consumer goods as ‘the sale of movable property …, concluded by a seller carrying out a trade, business or profession and a purchaser, a natural person, not carrying out a trade, business or profession’.

9 Article 7:17(1) of the BW provides that the goods delivered must be in conformity with the contract.

10 Article 7:18(2) of the BW, which transposes Article 5(3) of Directive 1999/44 into Netherlands law provides: ‘In the case of a consumer sale it is presumed that the goods delivered are not in conformity with the contract if the lack of conformity becomes apparent within six months after delivery, unless the nature of the goods or the nature of the lack of conformity preclude this.’

11 It is apparent from the explanatory memorandum relating to the insertion of that provision that the purchaser must assert, and in the event of a dispute, prove, that the goods are not in conformity with the contract and that that lack of conformity became apparent within 6 months of delivery. It is then for the seller to assert and prove that, when delivered, the goods were in fact in conformity with the contract.

12 Article 7:23(1) of the BW provides: ‘The purchaser can no longer rely on a lack of conformity with the contract of the goods delivered, if he has not given notice thereof to the seller within the appropriate period after he discovered or ought reasonably to have discovered it. If, however, it appears that the goods lack a characteristic which according to the seller they possessed, or if the lack of conformity relates to facts which he knew or ought to have known, but which he did not disclose, the notification must then take place within the appropriate time after the discovery. In the case of a consumer sale, the notification must take place within the appropriate time after the discovery, where a notification within a period of two months after the discovery is in good time.’

13 According to the settled case-law of the Hoge Raad (Supreme Court of the Netherlands), it is for the purchaser, if the seller claims that he was not informed within the time-limits, to assert and, in the case of a substantiated challenge, to prove that he informed the seller in good time and in a manner that was clearly identifiable for the seller. In the case of a sale of consumer goods, the question of whether a notification which is made more than two months after the discovery of the lack of conformity may be regarded as having taken place in good time depends on the circumstance of the case.

Procedural law

14 Pursuant to Articles 23 and 24 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, ‘the Rv’), the court may rule only on the claims of the parties and must confine itself to the legal matters on which the claim, application or defence are based.

15 In appeal proceedings, the court dealing with those proceedings may rule only on the complaints which were put forward by the parties in the first claims lodged on appeal. The court hearing the appeal must, however, apply of its own motion the relevant provisions of public policy, even if these have not been invoked by the parties.

16 However, under Article 22 of the Rv, ‘the court may in all circumstances and at each stage of the procedure ask either or both of the parties to explain certain claims or to provide certain documents relating to the case’.

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

17 On 27 May 2008, Ms Faber purchased a secondhand vehicle at the Hazet garage. The contract of sale concluded between the parties was drawn up on a pre-printed form bearing the heading of that garage, entitled ‘contract of sale to a private individual’.

18 On 26 September 2008, the vehicle in question caught fire during a journey and was completely destroyed. Ms Faber, who was driving the vehicle, was at that time on her way to a business meeting in the company of her daughter.

19 The vehicle was towed to the Hazet garage by a breakdown lorry and then, at the request of that garage, to a scrapyard to be kept there in accordance with the environmental legislation in force. Ms Faber maintains, but this is disputed by the Hazet garage, that, on that occasion, the parties spoke about the accident and about the possible liability of the garage.

20 At the beginning of 2009, the Hazet garage contacted Ms Faber by telephone who told them that she was waiting for the police report on the fire. In response to a request by Ms Faber, the police, however, informed her that no technical report had...