The legal guarantee is mandatory and applies EU-wide for two years beginning from the date you receive the goods. In the case of used goods, the warranty claims may not be less than one year. In addition, there is often an additional commercial warranty. However, this is a service that dealers or manufacturers can offer voluntarily.
The legal guarantee, which every consumer in the EU is entitled to, has been introduced in certain aspects of the sale of consumer goods. The legal basis is the directive 1999/44/EC - 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 will tend to apply the legislation of their own 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 between the Member States, Iceland and Norway concern:
The direct liability of the seller
On many occasions the seller redirected the consumer to the producer, even for application of the legal guarante.
The duration of the legal guarantee
The Directive offers a 2-year legal guarantee of conformity, from the date that the item was delivered to the consumer. Most countries have implemented a 2-year guarantee of conformity but six countries apply a longer duration, with 4 of them taking into account the expected lifespan of the product. In 14 countries the time limit can be reduced for second-hand products but cannot be less than 1 year.
Deadline for the consumer to notify the seller of a defect or non-conformity
The directive permits member States to impose a notification deadline, but it cannot be shorter than 2 months. 12 countries have transposed the 2-months deadline, while 18 countries decided not to adopt a firm time limit of 2 months. Out of these countries, 15 specify that the consumer should act within a reasonable time frame of noticing the lack of conformity.
The duration of the legal guarantee after repair or replacement
12 countries decided that during repair or replacement the 2-year duration of the legal guarantee is suspended and resumes as soon as the consumer receives the repaired or replacement item.
The burden of proof of the existence of a defect
In principle, in any legal dispute, the party who claims the application of a right must prove their case. Exceptionally, this burden of proof can be reversed. All Member States introduced this burden of proof reversal into their national laws in favour of consumers. 5 member States went further by extending the normal 6-months duration. In 9 out of the 53 consumer cases (16.98%) the seller would refuse the returned item. The consumer would be redirected to the producer or one of the brand's official repair centres, and his/her complaint under the legal guarantee would be refused.
Possibility for the seller to claim compensation for the time during which the consumer used the item before it was found to be faulty
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, it is to the consumer’s advantage as they receive a new item. However, even though the Directive anticipates the replacement to be free of charge, the seller may consider that these circumstances entitle him/her to 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 defective.
Commercial warranties have become an integral part of marketing, especially for electrical appliances and audio-visual equipment. However, many consumers express confusion with regard to the guarantees and warranties which they are entitled to.
The seller has several obligations with regard to the timing of providing information, the form to be respected, and the content of the commercial warranty.
The duration of commercial warranties in EU member States is usually between 1 and 5 years, and is 2 years in most cases (as is the case for the LEGAL GUARANTEE). More expensive items usually have a longer warranty which often applies to specific parts of the product.
Commercial warranties vary between countries. In some Member States it is more common for commercial warranties to be offered against payment than in others. In some, they must be offered free of charge. For warranties offered against payment, the costs vary considerably and, especially given the duration of the contract and depreciation in value, the benefit of a commercial warranty varies considerably as well.
Advantages of commercial warranties
The duration of the legal guarantee is limited and it is not always easy to prove the existence of a defect. Commercialwarranties therefore can have benefits for consumers. The ECC-Net, based on its case handling experience and the checks performed online and offline, is able to draw up a list of the mainadvantages of commercial warranties.
A commercial warranty can be beneficial if:
- Its duration is longer than that of the legal guarantee.
- Consumers do not have to prove the existence of a defect, particularly after the first six months.
- Consumers get a replacement item during repair.
- The complaint procedures are smooth.
- Consumers do not need to organise shipping of the defective items
- It foresees a mechanism to ensure that a repairer comes to the consumer's home
- All costs for analysing the item, repair or replacement are borne by the guarantor.
- Direct replacement of the item with no attempt to repair
- All issues are covered regardless of the case, including water damage, accidental breakage and oxidation.
- Consumers can usually contact any representative of the producer or reseller (if it is a producer warranty) for application of the warranty,
- It is usually an accessory to the item, and can be included in any re-sale.
- 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 to the value of the purchase price.
Commercial warranties might also overlap with other insurance policies that a consumer might have.
Special Focus: Geographical restrictions to territorial coverage of commercial warranties
Consumers have reported cases to the ECC-Net in which they felt discriminated against on geographical grounds, either because they purchased an item in another country or because the commercial warranty conditions of their home country are not as beneficial as those in another Member State.
Usually the situation is as follows: a seller based in one EU Member State offers goods for sale along with the possibility to have them delivered to another Member State. At purchase he/she proposes a commercial warranty on the item. The warranty might have geographical restrictions limiting its application to the country of the seller, or specific cross-border conditions (shorter warranty period in the consumer's home country than in the country of sale, etc.).
Article 20 of Directive 2006/123/EC of 12 December 2006 on services in the Internal Market prohibits discrimination based on nationality or place of residence unless justified by objective reasons. As such, each situation must be analysed on a case-by-case basis.
However, a seller offering a commercial warranty in a cross-border context should be well aware of the specificities of the warranty. If it is limited to the country of sale, the consumer should be made aware of this. Being particularly interested in consumer protection in a cross-border context, the ECCs asked during check n° 4 in the shops (total number of checks 79) if there were any geographical restrictions to commercial warranty cover. It seems that only a fifth of the sellers are aware of the geographical restrictions of the warranties they supply. 7 sellers responded that there are geographical restrictions and that the commercial warranty is only valid in the country of sale or in countries where the producer has a representative. 8 sellers claimed that there are no geographical restrictions.
Do they add to the legal protection in place in the EU, Iceland and Norway? The ECC-Net carried out 342 checks in 25 countries, screened 104 websites, contacted 127 shops and surveyed 543 consumers online. The results show that not all commercial warranty offers go beyond the legal guarantee and that they contain numerous exclusions.
You will find here the full report of the ECC-NET.
And here a summary, with a table of of Member States having transposed the directive on consumer rights.