The legal guarantee to which every European consumer is entitled was introduced by Directive 1999/44/EC on certain aspects of the sale of consumer goodsand associated guarantees. This is a minimum harmonisation directive which takes into account pre-existing rules in several Member States providing a higher level of protection for consumers with regard to the non-conformity of goods. Understanding these national differences is important when it comes to cross-border trade as sellers tend to apply the legislation of their country, unless they target specific countries through online sales or other distance-selling means and have developed country specific after sales services.
The main differences in the application of Directive 1999/44/EC in the various EU Member States, Iceland and Norway concern:
Direct liability of the seller
On many occasions the seller redirected the consumer to the producer, even for application of the legal guarantee.
Duration of the legal guarantee
The Directive provides for a 2-year legal guarantee of conformity, from the date of delivery of the item to the consumer. The majority of countries have implemented this but seven countries apply a longer duration and 4 of them take into account the expected lifespan of the product. In 14 countries, the time limit can be reduced for second-hand products but not to less than 1 year.
Deadline for the consumer to notify the seller of a defect or non-conformity
The Directive foresees the possibility for Member States to impose a notification deadline which cannot be shorter than 2 months. 12 countries have transposed the 2-month deadline while 18 countries have not adopted a firm time limit. In 15 of these 18 countries, the consumer should act within reasonable time of noticing the lack of conformity.
Burden of proof of the existence of a defect
In principle, in any legal dispute, the party who claims application of a right must prove its case. Exceptionally, this burden of proof can be reversed. All Member States introduced this reversal of burden of proof in favour of the consumer in their national law. 5 went further by extending the normal 6-month duration of the reversal.
Duration of the legal guarantee after repair or replacement
In 12 countries, the 2-year legal guarantee is suspended during repair or replacement and resumes as soon as the consumer receives the repaired or replacement item.
Possibility for the seller to claim compensation for the time during which the consumer had use of the item before it was found to be faulty
Quite often a deffect does not occur right away but only after the consumer has used the item for some time. If the item is replaced, the consumer receives a new item which is to his/her advantage. Even though the Directive provides for the remedy to be free of charge, the seller may consider that this entitles his/her for compensation. This issue is not covered by the Directive and Member States are therefore free to impose national rules. In 8 countries, the seller is allowed to ask the consumer for compensation for the time he/she had use of an item that later turned out to be deffective.
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