Froukje Faber v Autobedrijf Hazet Ochten BV.

• Jurisdiction: European Union
• Celex Number: 62013CC0497
• ECLI: ECLI:EU:C:2014:2403
• Date: 27 November 2014
• Docket Number: C-497/13
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 27 November 2014 ( 1 )

Case C‑497/13

Froukje Faber

v

Autobedrijf Hazet Ochten BV

(Request for a preliminary ruling

from the Gerechtshof Arnhem-Leeuwarden (Netherlands))

‛Directive 1999/44/EC — Status of the purchaser — Judicial protection — Lack of conformity of goods — Duty to inform the seller — Burden of proof’

1. In this case, the Gerechtshof Arnhem-Leeuwarden (Netherlands) (‘the referring court’) seeks a preliminary ruling on two sets of issues regarding Directive 1999/44/EC, which harmonises rules on certain aspects of consumer contracts. ( 2 ) The first set concerns in essence whether EU law requires a national court to examine of its own motion whether a party purchasing goods is a consumer within the meaning of Directive 1999/44 and, if so, the scope of that obligation. ( 3 ) The second set relates to the consumer’s duty to inform the seller of the lack of conformity of goods delivered pursuant to a contract governed by Directive 1999/44 and the burden of proof regarding such lack of conformity in any subsequent proceedings.

2. These issues have arisen in a dispute between Ms Froukje Faber and Autobedrijf Hazet Ochten BV (‘Hazet’) over compensation for damage resulting from the alleged lack of conformity of a second-hand car sold by Hazet to Ms Faber which caught fire.

Directive 1999/44

3. Directive 1999/44 contributes to achieving the objective of a high level of consumer protection set out in Article 169 TFEU. ( 4 ) It provides for minimum harmonisation. ( 5 ) According to recital 5 in the preamble, ‘the creation of a common set of minimum rules of consumer law, valid no matter where goods are purchased within the [European Union], will strengthen consumer confidence and enable consumers to make the most of the internal market’.

4. Recital 6 identifies non-conformity of goods with the contract as the main difficulty encountered by consumers and the main source of disputes with sellers. Recital 7 elaborates on the principle of conformity and states that: ‘… the goods must, above all, conform with the contractual specifications; … the principle of conformity with the contract may be considered as common to the different national legal traditions; … in certain national legal traditions it may not be possible to rely solely on this principle to ensure a minimum level of protection for the consumer; … under such legal traditions, in particular, additional national provisions may be useful to ensure that the consumer is protected in cases where the parties have agreed no specific contractual terms or where the parties have concluded contractual terms or agreements which directly or indirectly waive or restrict the rights of the consumer and which, to the extent that these rights result from this Directive, are not binding on the consumer’.

5. According to recital 8, in order to facilitate the application of the principle of conformity, ‘it is useful to introduce a rebuttable presumption of conformity with the contract covering the most common situations; … that presumption does not restrict the principle of freedom of contract …’. Recital 8 further states that, ‘in the absence of specific contractual terms, as well as where the minimum protection clause is applied, the elements mentioned in this presumption may be used to determine the lack of conformity of the goods with the contract; … the quality and performance which consumers can reasonably expect will depend inter alia on whether the goods are new or second-hand; … the elements mentioned in the presumption are cumulative; … if the circumstances of the case render any particular element manifestly inappropriate, the remaining elements of the presumption nevertheless still apply’.

6. Recital 19 states that ‘Member States should be allowed to set a period within which the consumer must inform the seller of any lack of conformity; … Member States may ensure a higher level of protection for the consumer by not introducing such an obligation; … in any case consumers throughout the [European Union] should have at least two months in which to inform the seller that a lack of conformity exists’.

7. According to recital 22, ‘the parties may not, by common consent, restrict or waive the rights granted to consumers, since otherwise the legal protection afforded would be thwarted …’.

8. For the purposes of Directive 1999/44, a ‘consumer’ is ‘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’ (Article 1(2)(a)); a ‘seller’ is ‘any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession’ (Article 1(2)(c)); and ‘consumer goods’ include ‘any tangible movable item’ (Article 1(2)(b)). ( 6 )

9. In accordance with Article 2(1), ‘[t]he seller must deliver goods to the consumer which are in conformity with the contract of sale’. Pursuant to Article 2(2), consumer goods are presumed to be in conformity 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.’

10. Under Article 2(3), ‘[t]here shall be deemed not to be a lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or could not reasonably be unaware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer’.

11. Article 3(1) provides that the seller is to be liable for any lack of conformity existing when the goods were delivered. The remaining part of Article 3 sets out the remedies available to the consumer. These are summarised in Article 3(2) in the following order: repair or replacement so that the goods are brought into conformity free of charge; appropriate reduction in price; and cancellation of the contract with regard to the goods concerned.

12. Article 5, entitled ‘Time limits’, states: ‘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. If, under national legislation, the rights laid down in Article 3(2) are subject to a limitation period, that period shall not expire within a period of two years from the time of delivery. [ ( 7 ) ] 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.’

13. Article 8(2) (‘National law and minimum protection’) provides: ‘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.’ ( 8 )

14. In accordance with Article 9, ‘Member States shall take appropriate measures to inform the consumer of the national law transposing this Directive and shall encourage, where appropriate, professional organisations to inform consumers of their rights’.

Netherlands law

15. Article 7:5(1) of the Burgerlijk Wetboek (Netherlands Civil Code; ‘BW’) defines a consumer sale as ‘the sale relating to movable property … which is concluded by a seller acting on a commercial basis and a purchaser, a natural person, not acting on a commercial basis’.

16. In accordance with Article 7:17(1) BW, goods delivered must be in conformity with the contract.

17. Article 7:18(2) BW, which transposed Article 5(3) of Directive 1999/44 into Netherlands law, provides that: ‘In the case of a consumer purchase 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.’

18. According to the Explanatory Memorandum to Article 7:18(2) BW, it is for the purchaser to assert (and to prove, in the event of a dispute) that the goods are not in conformity with the contract and that the lack of conformity became apparent within six 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.

19. Article 7:23(1) 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...