The plaintiff purchased floor tiles from the defendant, who operates a building materials trade, for a price of €1,382.27. After having the tiles laid in his residence, defects became apparent. Consequently, the plaintiff sought from the defendant the delivery of new tiles and payment for future removal and installation costs amounting to €5,830.57.
The District Court granted the claim in a small part, amounting to €273.10, and dismissed it otherwise, including with regard to the removal costs. However, upon the plaintiff's appeal, the Higher Regional Court ordered the defendant, among other things, to pay the costs for the removal of the tiles, amounting to €2,122.37. The defendant is challenging this decision with a revision permitted by the appellate court.
The Eighth Civil Senate of the Federal Court of Justice (BGH), responsible for sales law, suspended the revision proceedings and, in accordance with the obligation under Article 234 of the EC Treaty, referred the following questions concerning the interpretation of Community law to the Court of Justice of the European Communities for a preliminary ruling:
1. Are the provisions of Article 3(3), subparagraphs 1 and 2, 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 a national legal provision whereby the seller, in the event of a lack of conformity of the consumer goods delivered, may refuse the type of remedy requested by the consumer even if it would incur costs for the seller that would be unreasonable (absolutely disproportionate) compared to the value the consumer goods would have had without the lack of conformity and the significance of the lack of conformity?
2. If the first question is answered in the affirmative: Are the provisions of Article 3(2) and (3), subparagraph 3, of the aforementioned Directive to be interpreted as meaning that the seller, in the event of the consumer goods being brought into conformity by means of replacement delivery, must bear the costs of removing the non-conforming consumer goods from an item into which the consumer has incorporated them in accordance with their nature and intended purpose?
The Senate stated that, under German law, the plaintiff cannot demand from the defendant the costs for the removal of the defective tiles within the scope of supplementary performance by delivering a defect-free item (Section 439 (1) sentence 2 BGB), even if such a claim were to be affirmed in principle.
German law, specifically Section 439 (3) BGB, grants the seller the right to refuse supplementary performance due to the absolute disproportionality of the associated costs. Such absolute disproportionality is to be assumed here because the costs of supplementary performance (delivery of new tiles and removal of the defective tiles), totaling approximately €3,300, significantly exceed the value of the tiles in a defect-free condition, which is no more than the purchase price, by well over 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) – the Consumer Sales Directive. This Directive could be interpreted as meaning that the seller may refuse supplementary performance not due to absolute, but only due to relative ("...compared to the alternative remedy...") disproportionality of the costs involved.
In this case, the further question arises whether the buyer, within the scope of supplementary performance by delivering a defect-free item (Section 439 (1) sentence 2 BGB), can demand from the seller the removal of the defective purchased item from another item into which it was incorporated as intended, and consequently, also claim reimbursement of these costs by way of damages. Such an obligation cannot be inferred from German law. However, according to the appellate court's assumption, it could arise from Article 3(2) and (3) of the Consumer Sales Directive, which would have to be considered in the necessary directive-compliant interpretation of Section 439 BGB.
The interpretation of the provisions of Article 3(2) and (3) of the Consumer Sales Directive in the context outlined is reserved for the decision of the Court of Justice of the European Communities.
Article 3 of the Consumer Goods Directive reads:
(1) ...
(2) In the case of a lack of conformity, the consumer shall be entitled to have the consumer goods brought into conformity free of charge, either by repair or replacement, in accordance with paragraph 3...
(3) The consumer may, in the first instance, 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 disproportionate if it would impose costs on the seller which:
– in view of the value the consumer goods would have had without the lack of conformity,
– considering the significance of the lack of conformity, and
– after considering whether the alternative remedy could be resorted to without significant inconvenience for the consumer,
would be unreasonable compared to the alternative remedy.
The repair or replacement must be completed within a reasonable time and without any significant inconvenience to the consumer, taking into account the nature of the consumer goods and the purpose for which the consumer required the consumer goods.
...
Decision of the Federal Court of Justice of January 14, 2009 – VIII ZR 70/08
Lower courts: Regional Court Kassel – Judgment of november 24, 2006 – 4 O 1248/06 – Higher Regional Court Frankfurt am Main – Judgment of February 14, 2008 – 15 U 5/07
Source: Press release of the Federal Court of Justice No. 08/2009 of January 14, 2009
