The plaintiff purchased floor tiles at a price of € 1,382.27 from the defendant, who runs a building materials trade. After he had the tiles laid in his house, defects became apparent. Therefore, the plaintiff demanded the delivery of new tiles from the defendant as well as the payment of future removal and installation costs in the amount of 5,830.57 €.
The Regional Court granted a small part of the claim in the amount of €273.10 and dismissed the rest of the claim, including the removal costs. On the plaintiff's appeal, the Higher Regional Court ordered the defendant to pay, among other things, the costs for the removal of the tiles in the amount of € 2,122.37. The plaintiff appealed against this order. The defendant appealed against this order in the appeal allowed by the Court of Appeal.
The VIII. Civil Senate of the Federal Court of Justice (BGH) has suspended the appeal proceedings and, in accordance with the obligation under Article 234 of the EC Treaty, has referred the following questions on the interpretation of Community law to the Court of Justice of the European Communities for a preliminary ruling:
(1) Must the provisions of the first and second subparagraphs of Article 3(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 Are the provisions of the first and second subparagraphs of Article 3(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 to be interpreted as precluding national legislation under which, in the event of a lack of conformity of the consumer goods supplied, the seller may refuse the type of remedy requested by the consumer even if it would entail costs for the seller which would be unreasonable (absolutely disproportionate) in comparison with the value of the consumer goods in the absence of the lack of conformity and the significance of the lack of conformity?
(2) If the answer to the first question is in the affirmative, are the provisions of Article 3(2) and the third subparagraph of Article 3(3) of the abovementioned directive to be interpreted as meaning that, in the event that the consumer goods are restored to their contractual condition by means of a replacement delivery, the seller must bear the costs of removing the nonconforming consumer goods from an item into which the consumer has incorporated the consumer goods in accordance with their nature and intended use?
The Senate has stated that under German law, the plaintiff cannot demand the costs for the removal of the defective tiles from the defendant within the scope of the supplementary performance by delivery of a defect-free object (§ 439 para. 1 case 2 German Civil Code), which is the only option to be considered here, even if such a claim could in principle be affirmed.
German law provides in § 439 para. 3 BGB for the seller's right to refuse subsequent performance due to absolute disproportionality of the costs required for this. Such absolute disproportionality is to be assumed here because the costs of the supplementary performance (delivery of new tiles and removal of the defective tiles) with a total of about € 3,300 exceed the value of the tiles in a defect-free condition, which is not more than the purchase price, by significantly more than 150%.
However, German law could be in conflict with 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 EC No. L 171 p. 12) - Consumer Sales Directive. This could be interpreted to the effect that the seller may not refuse subsequent performance on the grounds of absolute, but only relative ("... compared to the alternative remedy ...") disproportionality of the costs required for this.
In this case, the further question arises whether the buyer, within the scope of subsequent performance by delivery of a defect-free object (§ 439 (1) case 2 BGB), can demand from the seller the removal of the defective object of purchase from another object into which it has been installed for its intended purpose and accordingly also, by way of damages, the reimbursement of the costs for this. Such an obligation cannot be inferred from German law. However, according to the Court of Appeal's assumption, it could result from Art. 3 para. 2, para. 3 of the Consumer Sales Directive, which would have to be taken into account in the required interpretation of § 439 BGB in conformity with the Directive.
How the provisions of Art. 3(2) and (3) of the Consumer Sales Directive are to be interpreted in the context set out above is a matter for the decision of the Court of Justice of the European Communities.
Article 3 of the Consumer Goods Directive reads:
(1) ...
(2) In the event of a lack of conformity, the consumer shall be entitled either to have the consumer goods restored to conformity free of charge by repair or replacement in accordance with paragraph 3 ...
(3. Initially, the consumer may require the seller to repair the consumer goods free of charge or to replace them free of charge, unless this is impossible or disproportionate.
A remedy shall be deemed to be disproportionate if it would cause the seller costs that would be
- in view of the value that the consumer good would have had without the lack of conformity,
- taking into account the significance of the lack of conformity; and
- after considering whether the alternative remedy could be resorted to without significant inconvenience to the consumer,
would be unreasonable compared to the alternative remedy.
The repair or replacement must be carried out within a reasonable time and without significant inconvenience to the consumer, taking into account the nature of the consumer goods and the purpose for which the consumer needed the consumer goods.
...
Decision of the BGH of 14 January 2009 - VIII ZR 70/08
Previous instances: Kassel Regional Court - Judgment of 24 November 2006 - 4 O 1248/06 - Frankfurt am Main Higher Regional Court - Judgment of 14 February 2008 - 15 U 5/07
Source: Press release of the BGH No. 08/2009 of 14.01.2009
