Warranty and guarantee in the EU

The legal warranty is mandatory and applies EU-wide. It lasts for two years starting from the date when consumers received their products. In case of used goods, the period can be shorter (1 year). Furthermore, a commercial guarantee is often agreed between the contracting parties. We explain the difference between legal warranties and commercial guarantees.

Legal warranty in Europe

Legal warranty rights are valid throughout the whole EU thanks to the Consumer Sales Directive. This Directive has been updated and extended and is applicable in its current form from 1st Januar 2022 on. In some points, the Directive only provides minimum standards. Therefore, the Member States can structure these points in different ways.

To understand the national differences is important when cross-border trade takes place, as, in general, sellers will tend to apply the legislation of their own country. Sometimes, it may also be an explicit choice of law or the law of the consumer’s homeland is applicable.

The main differences between the Member States (including Iceland and Norway) concern:

  • The duration of the legal warranty
    The Directive offers a legal warranty of 2 years, starting from the date when the product was delivered to the consumer. Most EU countries have legally implemented a 2-years warranty. Some of them even apply a longer duration or refer to the expected lifespan of the product. In several Member States, the time limit is reduced for second-hand products. But not shorter than 1 year.
  • The deadline for the consumer to inform the seller regarding a defect or non-conformity of the product
    The Directive permits Member States to impose a notification deadline. Not shorter than 2 months. Many countries decided not to adopt this time limit. But the consumer should act within a reasonable time informing the trader about the lack of conformity.
  • The duration of the legal warranty after repair or replacement
    Some of the countries decided that during repair or replacement, the 2-years-period is suspended and continues as soon as the consumer receives the repaired or replaced product. However, in many countries this rule does not apply.
  • The burden of proof concerning the existence of a defect
    In principle, in any legal dispute, the party who is filing a claim must provide evidence. Exceptionally, the burden of proof can be reversed. All EU Member States adopted the burden of proof reversal into their national laws. In favour of the consumers. For example: In Germany the burden of proof reversal lasts 12 months. During this period, one assumes that the defect was already present from the beginning, which makes it easier for the buyer to submit a complaint.
  • The possibility for the seller to claim compensation
    Quite often a defect 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 one. Even though the Directive provides for the remedy to be free of charge, the seller may consider that this entitles them to a compensation. This issue is not covered by the Directive and Member States are therefore free to impose national rules. In some countries, the seller is allowed to ask for compensation for the time the consumer had use of an item that later turned out to be defective. In Germany the seller is not allowed to ask for compensation.

Good to know

In many cases, the seller redirects the consumer to the producer for the application of the legal warranty. However, consumers should be aware of the fact that the seller is responsible for the application of the legal warranty.

Legal warranty in Germany

The legal warranty period for new goods in Germany is 2 years. For second-hand goods, it is 1 year if the buyer and seller expressly agree on this fact at the time of purchase.

Warranty: New rules applicable for purchases done after 1st January 2022:

  • There are now special rules concerning the following products:
    - digital content (e. g. music files, photos, computer programs)
    - digital services (e. g. clouds, streaming services, web hosting)
    - goods with digital elements (e. g. smartwatches with an application on the mobile phone, smart TVs with certain video applications).
  • The reversal of the burden of proof was made more consumer-friendly in Germany. It has been extended from six to twelve months. However, this does not apply to purchases done prior to 1st January 2022. There, it is still 6 months.
  • In addition, it is now explicitly regulated which kind of information a commercial guarantee must contain.

Commercial guarantee in Europe

The legal warranty is not the same as the commercial guarantee, which causes confusion for many consumers. This is also the case as the terms “warranty” and “guarantee” are often used synonymously. Adding "legal" or "commercial" makes the difference much clearer.

The commercial guarantee is a voluntary service provided by the trader or the manufacturer. Traders and manufacturers can determine the duration and the terms and conditions of the commercial guarantee. Even if consumers have received an additional guarantee, their legal warranty rights remain. 

Guarantee declarations for contracts, concluded from 1st January 2022 on, must contain the following:

  • Reference to the fact that the legal guarantee remains in force, even if a commercial warranty declaration is issued.
  •  Address of the guarantor (manufacturer or trader)
  • Information what the consumer has to do in order to invoke the commercial warranty
  • Information about the goods for which the guarantee applies

If the guarantor does not comply with these legal requirements, he is still liable under the guarantee. The same applies to the consequences of missing certain mandatory information.

The duration of the commercial guarantee in EU Member States is usually between 1 and 5 years, and 2 years in most cases. Expensive products often show a longer commercial guarantee. Sometimes the guarantee only applies to specific parts of the product.

Commercial guarantees vary between countries. In some Member States, it is common to offer the commercial guarantees against payment. Whereas, in other countries, they have to be offered free of charge. For guarantees offered against payment, the costs vary considerably. Regarding the duration of the contract and the depreciation in value, the benefit of a commercial guarantee varies, too.

Advantages of commercial guarantees

The duration of the legal warranty is limited, and it is not always easy to prove the existence of a defect. Therefore,  commercial guarantees could have benefits for consumers.

A commercial guarantee can be beneficial if ...

  • its duration is longer than the legal warranty period
  • consumers do not have to prove the existence of a defect, particularly when the reversal of burden of proof has expired
  • consumers get a replacement product during repair
  • there are smooth internal complaint procedures
  • consumers do not need to organize the shipping of the defective products
  • it foresees a mechanism to ensure that a repairer comes to the consumer's home
  • all costs for analysing the product, repair or replacement are at the expense of the guarantor
  • there is immediate replacement offered without previous repair attempts
  • if all guarantee issues are covered regardless of the case
  • consumers can usually contact any representative of the producer or reseller (if it is a producer guarantee) for application of the warranty
  • it may offer a “cooling off” period. If the consumer is not satisfied with the product, bigger brands often offer a total refund or a voucher in the amount of the purchasing price

Commercial warranties might also overlap with other insurance policies that a consumer has taken out.