European directives
In the European Union there are two important directives setting out the legal framework for consumers' rights and guarantees. These are: the Consumer Sales and Guarantees Directive and the European the Consumer Rights Directive (collectively "EU Law").
EU law has a binding character. In short, this means that the countries of the European Union may not derogate at national legal level to the detriment of a consumer. However, legislation can be made at national level that goes beyond the protection offered by EU law.
Terms
There are a number of terms which are essential in outlining the legal framework of the European Union in relation to consumer law. These are set out below:
Consumer
A consumer under EU law is any natural person who is acting for purposes which are outside his or her trade, business or profession. EU law applies to all natural persons residing in the European Union who buys a product through a webshop.
Online purchase
An online purchase is referred to in EU law as a 'distance purchase'. A distance purchase occurs when a trader and a consumer are not present in person to conclude a contract, but only use means of distance communication (e.g. the Internet) to conclude a contract.
Viewing period
A consumer who buys a product online has the right under EU law to withdraw his purchase without giving any reason. This means that the consumer can revoke/cancel the purchase without reason for a set period of time. This period is referred to as the 'cooling-off period'. Under EU law, a minimum viewing period of fourteen days applies.
Commencement of the trial period and possible extension of the trial period
The viewing period commences on the day on which the consumer or a third party designated by him, who is not the carrier, takes physical possession of the product or the last product (in the case of partial delivery). This shall not apply if the seller has not provided the consumer with the mandatory information concerning the right of withdrawal. In this case, the withdrawal period expires twelve months after the aforementioned dates.
Withdrawal
The revocation under EU law is not linked to any particular form. Customers can therefore also choose to revoke by e-mail or letter. In order to determine whether the revocation has been invoked in good time, the shipping theory should be used. This means that in order to comply with the period of fourteen days, sending the notice before the end of the review period is sufficient. The burden of proof for the correct and timely withdrawal lies with the consumer.
Consequences of timely withdrawal
If a revocation has been made in due time, the Seller shall, on the basis of EU law, reimburse all payments received from the Customer, including the delivery costs, without delay and in any event no later than fourteen days after receipt of the revocation. The customer is obliged to return the product within fourteen days. Again, the burden of proof lies with the consumer. The costs of returning the product shall only be borne by the customer if the seller has indicated this prior to the conclusion of the contract. In the case of bulky products, a clear estimate of the cost of the return must also be provided, so that customers can make a choice from whom they wish to purchase based on that information.
Exceptions where revocation is not possible
EU law provides for a number of exceptions where the right of withdrawal does not apply. These exceptions include: i) sealed goods that cannot be returned for hygienic or health reasons. The opening of an unsealed packaging is therefore permissible; and ii) the delivery of sealed audio and sealed video recordings and sealed computer software of which the seal has been broken after delivery. Think for example of a sealed DVD.
Legal Warranty Period
Under EU law, every seller is obliged to deliver to a consumer a product that is in conformity with the sales contract. This is also referred to as 'conformity'. If there is no conformity, EU law designates this as a 'defect'. Conformity must be guaranteed by the seller for two years. This period starts on the day on which the consumer or a third party designated by him, who is not the carrier, takes physical possession of the product or the last product (in case of partial delivery). In any case, there is no conformity (and therefore no defect) when a product:
- deviates from the description;
- deviates from the product offered or shown to the consumer;
- is not suitable for the purpose for which products of this type are normally used or for which the consumer has not received it;
- has ordered (only if the seller has accepted the consumer's requirements);
- does not exhibit the quality and performance which are normal for products of this type or which have been publicly communicated by the seller or supplier (e.g. in advertising or labelling); and/or
- has not been installed correctly (either by the seller or by the consumer as a result of faulty instructions).
Solutions in case of entitlement to warranty
When a consumer is entitled to a warranty, a consumer has the following rights under EU law (also referred to as 'compensation'):
- replacement of the product free of charge;
- free repair of the product;
- discount on the purchase price of the product;
- complete dissolution of the agreement and repayment of the full purchase amount.
Please note that in some countries a purchase cannot be cancelled if it concerns a small defect (e.g. a small discolouration on the inside of a jacket). The solution to be offered in a specific case depends very much on the country of residence of the consumer. Most countries where EU law applies have a defined hierarchy. In many cases, therefore, consumers are not free to choose from the solutions described above.
Warranty entitlement is free of charge
The right to warranty should be free of charge for the consumer. The buyer may therefore not charge shipping costs (return), labour costs, material costs, etc.
Seller's obligations in the event of a warranty claim
It is of the utmost importance that the seller (and not the manufacturer) is always the first point of contact for the consumer when he wants to invoke his right to warranty. Only when the defect can be solved more quickly via the manufacturer, may the seller refer the matter to the manufacturer. However, referral to the manufacturer in advance is not permitted. The first point of contact remains the seller. Upon receipt of a complaint, the seller must assess which of the solutions described above he is obliged to offer. Purely on the basis of EU law alone (i.e. leaving aside the national law of a country), a consumer is only eligible for a discount on the purchase price of a product or rescission of the sales contract if the consumer is not entitled to claim repair or replacement (e.g. the seller does not offer), or if the seller has not carried out repair or replacement in time or without serious inconvenience.
The right to repair or replacement is excluded if repair or replacement is impossible or disproportionate. Replacement can be 'impossible' if, for example, a product is no longer available. Replacement is disproportionate in case the costs of repair or replacement are unreasonably high in view of the (1) value of the product, the (2) seriousness of the non-conformity and the (3) degree of inconvenience to the consumer of an alternative solution. In that case, the consumer shall be entitled to a discount or rescission of the sales contract. However, the buyer is not entitled to dissolve the sales contract if the non-conformity is of minor importance (e.g. a small discolouration on the inside of a jacket). In that case, the seller is only obliged to give a discount on the product. In specific cases it is therefore possible that a consumer can only claim a solution in the form of a discount on the purchase price of the product.
When the seller does not offer repair under any circumstances
In many countries where EU law applies, the consumer first has the right under national law to choose between the solution of repair or replacement. The seller must then honour the choice unless the solution chosen is impossible or disproportionate. Therefore, if the seller does not offer the possibility of repair under any circumstances, there is only the solution of replacement of the product. Whether replacement is obligatory in a specific case depends on whether replacement is possible (e.g. the product is available) or disproportionate. As described above, 'disproportionate' is deemed to exist if the cost of repair or replacement is unreasonably high in view of (1) the value of the product, (2) the seriousness of the non-conformity and (3) the degree of inconvenience to the consumer of an alternative solution. In that case, the seller is only obliged to give a discount on the product. However, the consumer is not entitled to terminate the sales contract if the non-conformity is of minor importance (e.g. small discolouration on the inside of a jacket). In that case, a discount is the right solution.
Maximum period for claiming warranty
EU law allows for the possibility to provide at national level that the consumer must inform the seller within two months of discovery of the non-conformity, failing which the right to a guarantee expires. The timely provision of a warranty should be assessed on the basis of the national law of a country where EU law applies.
Additional warranty
EU law provides the minimum legal warranty period. The seller is allowed to provide an additional guarantee (also called the commercial guarantee). The seller is free to charge a fee for providing an additional guarantee. It is important to note that an additional guarantee does not replace the legal guarantee, which is a minimum of two years in accordance with EU law. The seller is obliged to clearly inform the consumer that an additional guarantee provided does not affect the legal guarantee. The specific requirements of EU law for an additional warranty are beyond the scope of this document and are therefore not addressed.
Burden of proof
The burden of proof under EU law is a far-reaching form of consumer protection. Normally, in law, 'he who pleads, proves' applies. In EU law, this does not apply and the burden of proof is reversed during the first six months after a consumer takes possession of a product. The consumer has 'acquired' possession of a product on the day on which the consumer or a third party designated by him, other than the carrier, takes physical possession of the product or the last product (in the case of part-delivery). Therefore, if a consumer claims during the above-mentioned period that his product is defective, the consumer does not have to prove that this defect is not attributable to him. On the basis of EU law, it is presumed that all defects that have arisen in the first six months after taking possession of the product are attributable to the seller. If the seller does not agree with the consumer, the seller will have to prove that he is not to blame for the defect. If the seller cannot prove this, he must fulfil his warranty obligations (see above for the description of these obligations).
How can the seller provide evidence?
In practice, during the period of the reverse burden of proof, the seller will have to prove that: the defect is due to normal wear and tear, taking into account the nature of the product and/or the normal performance of a product of the same type;
- that the defect is due to a lack of maintenance;
- the defect is due to improper handling by the consumer; and/or
- that the defect is the result of external factors, such as an accident.
In order to assess whether one or more of the situations described above may exist, a seller may require a consumer to provide information. This can be done, for example, by requiring a consumer to fill in a complaint form or by requiring a consumer to provide additional information, such as a photo and/or a video. A seller may also require an expert to give an opinion on the defect. The costs that a consumer has to incur in this respect are for the account of the seller. In a specific case, it will be necessary to assess/ weigh up what is the most appropriate way (e.g. looking at the costs/benefits).
After the reversal of the burden of proof
At the end of the period in which the burden of proof is reversed, the burden of proof under EU law is placed on the consumer. It is then up to the consumer to prove that a defect was already present when he took possession of the product. In principle, the seller no longer has any obligations at present and does not need to take any additional measures from an organisational point of view. If, for example, the consumer has an expert examination carried out with regard to a defect, these costs will be borne by the consumer. The seller does not have to accept such an expert opinion.
Where the parties are unable to reach agreement
If the consumer and the seller cannot reach a solution together, the dispute can be brought before and in accordance with the dispute resolution forum included in the sales contract.
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