LACD GmbH v BB Sport GmbH & Co. KG.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:710
• Date: 28 September 2023
• Docket Number: C-133/22
• Celex Number: 62022CJ0133
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

28 September 2023 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 2011/83/EU – Point 14 of Article 2 – Directive (EU) 2019/771 – Point 12 of Article 2 – Commercial guarantee – Specifications or any other requirements not related to the conformity of the goods sold, set out in the guarantee statement or in the relevant advertising – Undertaking by a guarantor in respect of the consumer’s satisfaction with the goods purchased – Verification that the consumer is not satisfied)

In Case C‑133/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 10 February 2022, received at the Court on 28 February 2022, in the proceedings

LACD GmbH

v

BB Sport GmbH & Co. KG,

THE COURT (Third Chamber),

composed of K. Jürimäe, President of the Chamber, M. Safjan, N. Piçarra (Rapporteur), N. Jääskinen and M. Gavalec, Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– LACD GmbH, by S. Kuhn, Rechtsanwalt,

– BB Sport GmbH & Co. KG, by C. Rohnke, Rechtsanwalt,

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

after hearing the Opinion of the Advocate General at the sitting on 9 March 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of point 14 of Article 2 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64), and point 12 of Article 2 of Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ 2019 L 136, p. 28).

2 The request has been made in proceedings between LACD GmbH and BB Sport GmbH & Co. KG concerning the lawfulness of a statement attached to the products marketed by LACD.

Legal context

European Union law

Directive 2011/83

3 Recitals 4, 5 and 7 of Directive 2011/83 state:

‘(4) … The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity.

(5) … The full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and a better functioning of the business-to-consumer internal market.

…

(7) Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. …’

4 According to Article 1 of that directive, its purpose is, ‘through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded between consumers and traders’.

5 Point 14 of Article 2 of that directive defines the concept of ‘commercial guarantee’ as ‘any undertaking by the trader or a producer (the guarantor) to the consumer, in addition to his legal obligation relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract’.

6 Article 6 of that directive, entitled ‘Information requirements for distance and off-premises contracts’, provides, in paragraph 1 thereof:

‘Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:

…

(m) where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees;

…’

Directive 2019/771

7 In accordance with Article 1 of Directive 2019/771, the purpose of that directive ‘is to contribute to the proper functioning of the internal market while providing for a high level of consumer protection …’

8 Point 12 of Article 2 of that directive defines the concept of a ‘commercial guarantee’ as ‘any undertaking by the seller or a producer (the guarantor) to the consumer, in addition to the seller’s legal obligation relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract’.

9 Article 24 of that directive provides, in paragraph 2 thereof, that the provisions of that directive are not to apply to contracts concluded before 1 January 2022.

German law

10 Under Paragraph 443(1) of the Bürgerliches Gesetzbuch (Civil Code), in the version applicable to the dispute in the main proceedings (‘the Civil Code’), the specific undertaking by the seller, manufacturer or another third party, set out in a statement or in advertising made before or on the date of the conclusion of the contract of sale, constitutes a guarantee in addition to the guarantee of conformity, the purpose of which is to reimburse the purchase price, to replace or repair the goods sold or to provide any other service in connection with those goods if they do not meet the specifications or any other requirements not related to conformity set out in that...