The current law protecting these rights is set out in Directive 1999/44/EC, which was implemented in the UK by virtue of amendments to the Sale of Goods Act 1979. The Directive provides additional remedies for UK consumers beyond the traditional remedy of refund of the price paid. These remedies are concerned with ensuring the performance of the original contract, and therefore provide a right for a consumer to request a repair of replacement of faulty goods free of charge and within reasonable time. The retailer does have the right to refuse to repair the product if the cost of doing so is disproportionately high to the cost of replacing the product (and vice versa). The retailer cannot refuse to either repair or replace on the grounds that it would be disproportionately expensive in comparison to a refund.
The ECJ was asked to give judgment on two similar cases C-65/09 and C87/09: Gerb. Weber GmbH v Jurgen Wittmer; Ingrid Putz v Medianess Electronics GmbH. In the first case the consumer had purchased goods, which following installation were later discovered to be defective. The defect could not be removed, and so the consumer requested that the retailer remove and replace the goods. The retailer refused on the basis of the high costs involved. The second case again concerned a fault discovered following installation. The consumer requested that the goods be removed and replaced, and the seller refused.
The ECJ handed down judgment that not only confirmed the general position under the Directive, but also made two key decisions which considerably widen the scope of the rights conferred upon consumers. In particular the Court held that, where goods are installed by the consumer before the defect becomes apparent, the retailer will be responsible for bearing the cost of removing the defective goods and installing the replacements. This obligation on the retailer will arise even where the consumer, rather than the retailer, installed the original defective product. In addition, the Court further held that where only one of the repair or replacement remedies was available, a retailer could not refuse to provide that remedy on the grounds that it would be disproportionately expensive.
This ruling significantly widens the scope of the protection afforded to consumers within the UK, and places further additional burdens on retailers. Retailers should be aware of the potential costs and obligations that arise should goods that are sold be found to be defective. However, it should be noted that retailers will only be required to repair or replace where goods are inherently defective. It is of particular importance that retailers are fully aware of their obligations given that consumers cannot be denied the right to repair or replace on the basis that it would be cheaper to refund or reduce the purchase price. In light of the specific developments as a result of this ECJ decision, it is also suggested that retailers should consider their existing terms and conditions to ensure that they do not contain any requirements that a consumer pay for any removal or reinstallation services. This should be done to avoid in the future potentially misleading customers as to their rights.
For additional information please contact Justin Emerson of Gepp & Sons on 01245 228113 or emersonj@gepp.co.uk
The above is not legal advice; it is intended to provide information of general interest about current legal issues.
