Warranty and guarantee in the EU

The legal warranty is mandatory and applies EU-wide for two years beginning from the date consumers receive the product. In the case of used goods, the period can be shortened (1 year). In addition, a commercial guarantee is often agreed between the contracting parties.

Warranty rights are valid throughout the whole EU thanks to the Consumer Sales Directive. The application of this Directive has been updated and extended in all Member States as of January 01, 2022. In some points, the Directive only provides for minimum standards. However, the Member States are allowed to provide a higher level of protection for consumers.

Understanding these national differences is important when it comes to cross-border trade as, in general, sellers will tend to apply the legislation of their own country. Sometimes, it may also be the case that an explicit choice of law is made or that the law of the consumer’s home country is applicable.

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

• The duration of the legal warranty
  The Directive offers a 2-year legal warranty, counted from the date when the product was delivered to the consumer. All EU countries have legally implemented a 2-year 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 less than 1 year.

• The 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 must not be shorter than 2 months. Many countries had decided not to adopt the firm time limit of 2 months, but the consumer should act within a reasonable time frame noticing 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-year period is suspended and resumes as soon as the consumer receives the repaired or replaced product. In many countries, however, 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 making a claim must provide evidence. 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. Many Member States extended the 6-months duration and went beyond this (1 or 2 years). During this period, one assumes that the defect was already present from the beginning, which makes it easier for the buyer to make 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 item, which is to their advantage. 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 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 it is the seller who is responsible for the application of the legal warranty.

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 at the time of purchase.

Legal warranty: New rules apply to purchases made after 1 January 2022:

• There are now special rules concerning the following products:

1. digital content (e.g. music files, photos, computer programs)
2. digital services (e.g. clouds, streaming services, web hosting)
3. 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 made before 1 January 2022. There, it is still 6 months.

• In addition, it is now explicitly regulated what a commercial guarantee must contain.

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

The commercial guarantee is a voluntary service provided by the dealer or the manufacturer. Dealers and manufacturers can determine the duration and the terms of the guarantee. Even if consumers have received an additional guarantee, their legal warranty rights remain. Commercial guarantees have become an integral part of marketing, especially for electrical appliances and audio-visual equipment.

The seller has several obligations regarding the timing of providing information, the form to be respected, and the content of the commercial guarantee.

The duration of the commercial guarantee in EU Member States is usually between 1 and 5 years, and 2 years in most cases (as it is the case for the legal warranty). Expensive products often have a longer warranty, which only applies to specific parts of the product.

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

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

The ECC-Net, based on its case handling experience, drew up a list of the main advantages of commercial guarantees.

 A contractual 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 borne by 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 to the value of the purchase price.

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