92001E2057

WRITTEN QUESTION E-2057/01

by Dirk Sterckx (ELDR) to the Commission

(13 July 2001)

Subject: Directive 1999/44/EC concerning guarantees on consumer goods: inadequate protection of shopkeepers

Directive 1999/44/EC(1) requires shopkeepers to give consumers two years' guarantee on the consumer goods they sell. Suppliers, importers or manufacturers, on the other hand, are not subject to any statutory guarantee obligation towards the shopkeeper. Consequently, shopkeepers have to rely on the good will of their suppliers when they are required to repair or replace a faulty product. In practice, retailers often have to bear the cost of repair or replacement themselves. To bring legal action often takes too long and is too expensive.

Does not the Commission consider that it is unbalanced and unreasonable to impose such stringent guarantee obligations on shopkeepers when the latter do not have the same means of redress against the manufacturer or importer of the faulty product? Has the Commission already considered this imbalance in the existing legislation, and has it received any other complaints about it? Does it not think that the legislation ought also to give the shopkeeper certain rights if he has bought a faulty product from his supplier?

(1) OJ L 171, 7.7.1999, p. 12.

Answer given by Mr Byrne on behalf of the Commission

(5 September 2001)

Article 4 of Directive 1999/44/EC of the Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, provides the final seller with a right of redress directed against other members of the distribution chain. Article 4 stipulates that, where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller shall be entitled to pursue remedies against the person or persons liable in the contractual chain. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and conditions of exercise, shall be determined by national law.

It is therefore up to the Member States' legislation to provide effective means of redress for the final seller.

However, the contractual relationship between the final seller and the person in the distribution chain from whom he/she buys - being a contract between two traders - is governed by the principle of freedom of contract. Therefore it is possible that the legal rights of the seller are restricted by way of contract. This has been clarified by recital 9 of the Directive.

For the Honorable Member's information, the Directive is to be put into effect by means of the national implementing measures from 1 January 2002.

Disputes and complaints arising from transactions regulated by the Directive's implementing measures will have to be addressed within the scope of the national legal systems of the Member States.