30.7.2011

Official Journal of the European Union

C 226/2

(Joined Cases C-65/09 and C-87/09) (<span class="super">1</span>)

(Consumer protection - Sale of consumer goods and associated guarantees - Directive 1999/44/EC - Article 3(2) and (3) - Replacement of defective goods as the only remedy - Defective goods already installed by the consumer - Obligation on the seller to remove the defective goods and install the replacement goods - Absolute lack of proportionality - Consequences)

2011/C 226/02

Language of the case: German

Referring courts

Parties to the main proceedings

Applicants: Gebr. Weber GmbH (C-65/09), Ingrid Putz (C-87/09)

Defendants: Jürgen Wittmer (C-65/09), Medianess Electronics GmbH (C-87/09)

Re:

References for a preliminary ruling — Bundesgerichtshof, Amtsgericht Schorndorf — Interpretation of Article 3(2) and (3) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12) — Sale to a consumer of goods lacking conformity through no fault of the seller — Goods correctly installed by the consumer — National legislation under which, in the absence of other forms of remedy, the seller is not obliged to replace goods lacking conformity if the cost would be unreasonable — Compatibility of that legislation with the Community provisions cited above — If incompatible, interpretation of the concept of ‘replacement free of charge’ in Article 3(3) of the above directive — Liability of the seller for the cost of dismantling goods lacking conformity correctly installed by the consumer

Operative part of the judgment

Article 3(2) and (3) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees must be interpreted as meaning that, where consumer goods not in conformity with the contract which were installed in good faith by the consumer in a manner consistent with their nature and purpose, before the defect became apparent, are restored to conformity by way of replacement, the seller is obliged either to remove the goods from where they were installed and to install the replacement goods there or else to bear the cost of that removal and installation of the replacement goods. That obligation on the seller exists regardless of whether he was obliged under the contract of sale to install the consumer goods originally purchased.

Article 3(3) of Directive 1999/44 must be interpreted as precluding national legislation from granting the seller the right to refuse to replace goods not in conformity, as the only remedy possible, on the ground that, because of the obligation to remove the goods from where they were installed and to install the replacement goods there, replacement imposes costs on him which are disproportionate with regard to the value that the goods would have if there were no lack of conformity and the significance of the lack of conformity. That provision does not, however, preclude the consumer’s right to reimbursement of the cost of removing the defective goods and of installing the replacement goods from being limited, in such a case, to the payment by the seller of a proportionate amount.

(<span class="super">1</span>) OJ C 90, 18.4.2009.