Consumer Sales Guarantees in the European Union

Transcription

1 Schriften zum Gemeinschaftsprivatrecht Consumer Sales Guarantees in the European Union Bearbeitet von Aneta Wiewiórowska-Domagalska 1. Auflage Taschenbuch. XIV, 345 S. Paperback ISBN Format (B x L): 14,1 x 22,4 cm Gewicht: 476 g Recht > Zivilrecht > Internationales Privatrecht > Europäisches Privatrecht Zu Leseprobe schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 GPR Dissertation Schriften zum Gemeinschaftsprivatrecht Consumer Sales Guarantees in the European Union

3 Die Schriften zum Gemeinschaftsprivatrecht werden herausgegeben von Professor Dr. Martin Schmidt-Kessel, Bayreuth Professor Dr. Christian Baldus, Heidelberg Professor Dr. Martin Gebauer, Tübingen Professor Dr. Stefan Geibel, Heidelberg Professor Dr. Peter Jung, Basel Professor Dr. Matthias Lehmann, Halle Rechtsanwalt Dr. Eike Najork, LL.M., Köln Notar Dr. Robert Schumacher, LL.M., Aachen Professor Dr. Michael Stürner, M.Jur., Frankfurt (Oder) Professor Dr. Brigitta Zöchling-Jud, Wien

4 Consumer Sales Guarantees in the European Union Aneta Wiewiórowska-Domagalska s e l p sellier european law publishers

5 ISBN (print) ISBN (ebook) The Deutsche Nationalbibliothek lists this publication in the Deutsche Natio - nalbibliografie; detailed bibliographic data are available on the Internet at by sellier european law publishers GmbH, Munich. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior per mission of the publisher. Production: Karina Hack, Munich. Typesetting: fidus Publikations-Service GmbH, Nördlingen. Printing and binding: AZ Druck und Datentechnik, Kempten. Printed on acid-free, non-ageing paper. Printed in Germany.

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8 Preface The regulation of consumer guarantees is one of the most intriguing novelties of the EU s 1999 Consumer Sales Directive. In practice, consumer guarantees often are seen as exemption clauses in disguise. The Consumer Sales Directive has put a stop to the legal consequences of such exemption clauses. However, consumer guarantees also have a, much more positive, effect. It was not until the 1970s that the British National Consumer Council pointed out that consumer guarantees were in fact of great practical use to consumers because traders will usually live up to the guarantee without hesitation, whereas they will be far less willing to cope if the consumer relies on the non-conformity regulation of sales law alone. Notwithstanding its practical importance, literature on guarantees is largely missing. Dr. Wiewiórowska s book therefore fills an important gap in European sales law literature. 1 It is one of the key-results of a large-scale research project conducted under the auspices of the Study Group on a European Civil Code and may be seen as the academic work underlying the provisions of Chapter 6 of the Principles of European Law on Sales contracts (PELS), which was published in 2008, and Chapter 6 of Book IV.A of the academic Draft Common Frame of Reference (DCFR). These provisions which are almost identical were largely drafted by Dr. Wiewiórowska. 2 Her book may therefore by seen as an authorative intepretation of these provisions. The book, however, does much more than explain the background of these provisions. It contains an exhaustive analysis of the legal phenomenon of the (consumer) guarantee, disclosing the competion law roots of the legislation on the guarantee, the effects of the Unfair Contract Terms Directive and the Consumer Sales Directive, and the relation between (non-) conformity and consumer guarantees in the latter Directive and with similar notions such as bank guarantees, after sales service, and insurances offered with goods and services. 1 Apart from a book by Chr. Twigg-Flesner, Consumer product guarantees, Aldershot: Ashgate, 2003, 229 p., there are no other major books on the subject-matter of this book. 2 The various draft texts of the group were first discussed in the Dutch working team under the supervision of Professors Maurits Barendrecht, Martijn Hesselink, Chris Jansen and the two undersigned. The team consisted also of young researchers in Amsterdam, Tilburg and Utrecht, coming from various jurisdictions. Then the texts were discussed by the full Advisory council and Drafting committee and approved by the Co-ordinating group. In preparing that work she was assisted by Christoph Jeloschek, Hanna Sivesand and the other young researchers from Amsterdam, Tilburg and Utrecht, who upon demand would provide the author with data as to their respective legal systems. Likewise, Dr. Wiewiórowska provided such data as to her own native legal system, that of Poland, to the other researchers. vii

9 Preface There are questions of terminology, witness the fact that in French speaking countries garantie has a different meaning from that in other countries. Furthermore, a comparison is made with the earlier Magnuson Moss Warranty Act from the United States and with the various national rules of EU member states. Moreover, the book shows how the attention of the European legislator has shifted from the market approach of competition law towards the more policyoriented approach of consumer law and indicates why this is not always to the advantage of consumers. It continues to show that the dominant view of the guarantee as a marketing tool is not in itself incorrect, but certainly does not represent the full picture: while from the point of view of the guarantor (be it the seller, the producer or another party in the distribution chain) a consumer guarantee is indeed a marketing tool, from the point of view of a consumer the guarantee may secure against loss, maintain the value of the goods and provide maintenance services not related to defects. Dr. Wiewiorowska convincingly shows that the emphasis of the European and in particular the national legislator on the point of view of the guarantor has led to underenforcement of the interests of consumers with regard to guarantees. Moreover, the European legislator s hypothesis that by requiring traders to inform consumers that the guarantee does not infringe his rights will ensure that consumers have a clear picture about their legal position is falsified. As such, Dr. Wiewiórowska shows that the transparency requirement in the Consumer Sales Directive does not provide an effective tool for consumer protection as consumers lack the knowledge to evaluate the information procided to them. She then suggests several solutions that could remedy this. In short, Dr. Wiewiorówska s excellent book on guarantees defended as a Ph.D. thesis at Utrecht University with the undersigned as her supervisors is indispensible reading for any academic or practioner interested in the background of consumer guarantee legislation or the operation of the rules on consumer guarantees in the Consumer Sales Directive, the Principles of European Law on Sales contracts and the Draft Common Frame of Reference. We are grateful to Professors Hugh Beale (Warwick / Amsterdam), Katharina Boele-Woelki (Utrecht), Anne Keirse (Utrecht), Eva Łetowska (Warsaw) and Paul Meijknecht (The Hague) for serving as members of the jury. Our congratulations go out to the young doctor, who after her return to Poland has already made herself indispensable for the Ministry of Justice with her thorough theoretical and practical expertise in European private law. It was a pleasure to supervise her work on the present, and excellent PhD study. Utrecht / Am sterdam, 27 August 2012 Prof. Ewoud H. Hondius and Prof. Marco B.M. Loos viii

10 Contents Preface vii Chapter I: Introduction 1. General introduction 1 2. The guarantee paradox the main problem fields 2.1 Lack of legislation Lack of knowledge and lack of distinction Lack of a legal construction of a guarantee If it is so problematic why use it? the positive aspects of guarantee 6 3. Origins of guarantee introduction 3.1 Etymology of the word Origins of the guarantee Evolution of the guarantee 8 4. Guarantee on the modern market 4.1 General Fields of guarantee application 9 5. Functions of the guarantee 9 6. Scope of the dissertation and the research question 6.1 Introduction Why only sales? Why only consumer sales? Sales means services these days Guarantees by producers and guarantees by other parties Other functions of the guarantee The research question and the plan of the thesis Methodology 21 ix

11 Table of Contents Chapter II: The consumer sales guarantee in EU policies 1. From competition law to private law consumer sales guarantees in European policies Guarantees in competition law 2.1 Introduction Article 101 (formerly Article 81) European competition law on consumer sales guarantees decisions, cases and resolutions Guarantees in consumer programmes 3.1 Opening the discussion The Unfair Contract Terms Directive The Green Paper of The following developments The Consumer Sales Directive After the Consumer Sales Directive Further review of the consumer acquis Conclusions 4.1 The aim of this chapter What conclusions may be drawn from analysing the policy steps regarding the guarantee? 54 Chapter III: Consumer sales guarantees European regulatory framework 1. Introduction 1.1 General Regulatory assumptions of the Directive Analysing the Directive Analysis of the Directive s rules 2.1 The scope of the rules on the guarantee in the Directive General: name, source, legal nature, creation Contents of the guarantee Transparency requirements Infringements Omitted issues 114 x

12 Table of Contents 3. Conclusions 3.1 General evaluation Assumptions of the Directive concerning the guarantee: are they correct? Assumptions of the Directive concerning the guarantee: are they fulfilled? 122 Chapter IV: Analysis of the consumer sales guarantee general part 1. Introduction 1.1 General introduction The scope of the analysis The name 2.1 Introduction Order of the analysis A guarantee: what does it mean? The problems Variety of names Reasons for the differentiation in terms Legal and commercial guarantees The proposed solutions Conclusions: how to avoid confusion? The dual nature of the guarantee 3.1 General introduction The scope of the analysis The dual nature of the guarantee: voluntary and obligatory guarantees Voluntary guarantees Content of the voluntary guarantee Obligatory guarantees The source of the guarantee a summary The legal form of a guarantee 4.1 What is the legal form? The European approach Why is it important to make such a classification? Plan of the analysis Sellers vs. other participants of the commercial chain 143 xi

13 Table of Contents 5. Legal guarantee and commercial guarantee internal and external relationships between two regimes 5.1 Introduction The external relationship between the statutory liability regime (conformity) and guarantee The internal relationship Conclusions 6.1 General Specific areas 167 Chapter V: Analysis of the consumer sales guarantee specific part 1. General introduction Parties engaged in the guarantee relation 2.1 Introduction The party who offers the guarantee and the party who transmits the guarantee to the buyer The seller s position in a guarantee offered by the producer Seller s guarantee The party who receives the guarantee and the party who benefits from the guarantee Who performs under the guarantee and who is liable under the guarantee? Coverage of the guarantee 3.1 Introduction Methods of indicating the scope of the guarantee coverage Mandatory coverage Default coverage The minimum content Establishing the content by reference Analysis of the guarantee coverage in the strict sense 4.1 General introduction The coverage in the strict sense Remedies of the guarantee 5.1 Introduction The typical remedies Practicalities of invoking the remedial system 213 xii

14 Table of Contents 6. Free guarantee and guarantee against payment 6.1 Introduction Should guarantees be for free or against payment? Where can the guarantor impose a charge (the 3 types)? Extended guarantees as a form of a guarantee against payment Duration of the guarantee 7.1 Introduction Measuring the duration Computation of the guarantee duration Limitations on the guarantor s liability under the guarantee Limitations regarding content Limitations based on formal requirements Burden of proof Conclusions Transparency requirements 9.1 Introduction Why ensuring transparency is important in the case of guarantees Transparency requirements general overview Different perspectives of assuring the guarantee s transparency Information allowing an informed choice by the consumer Putting the guarantee in the proper context Information that allows the enforcement of the guarantee The requirement to activate the guarantee Availability of the guarantee document general Language and formulation What if the transparency requirements are not met? Where the content of the guarantee should be presented in relation to the advertisement a mention Conclusions 267 Chapter VI: Conclusions 1. Introduction Overview of the thesis 2.1 The aim of the thesis Overview of the chapters and conclusions drawn on their basis 272 xiii

15 Table of Contents 3. General conclusions Conclusions regarding the Consumer Sales Directive Conclusion from the point of view of national legal systems Conclusions regarding the legislative process at the EU level Conclusions reaching beyond the scope of research questions 283 Annex Consumer Sales Guarantees in the European Union a summary 285 Garanties bij de verkoop van consumptiegoederen in de Europese Unie samenvatting 295 Gwarancja przy sprzedaży konsumenckiej w Unii Europejskiej streszczenie 307 Bibliography 321 Official documents 335 Index 341 xiv