MEPs are preparing to take a position on 22 February on the draft directive on the online sale of tangible goods (subsequently extended to physical sales). The compromise amendments seen by EUROPE, go in the direction of almost maximum harmonisation. The duration of the guarantee is set at two years and the period for reversing the burden of proof in the event of non-compliance has been set at one year.
It should be recalled that the draft directive aims to facilitate cross-border trade. The first casting presented in December 2015 dealt exclusively with e-Commerce by amending directive 1999/44/EC on certain aspects of sales and guarantees for consumer goods. Nonetheless, at the request of the Parliament and Council, the Commission presented a new text in October 2017 that also includes off-line sales (and abrogates the 1999 directive). On 24 January, the legal affairs committee (JURI) failed to reach an agreement on a common opinion, mainly due to the divergences between the political groups on the level of harmonisation sought. The left effectively supported minimum harmonisation that would allow the member states that so wished to adopt more protective provisions, while the right supported maximum harmonisation in an effort to put a stop to regulatory fragmentation. The Council is currently drafting its position on the matter.
Maximum harmonisation except in three cases
The compromise amendments that will be put to a vote on 22 January during the internal market and consumer protection committee go in the direction of relative maximum harmonisation. They authorise the member states that provide a guarantee against concealed defects (such as the Benelux countries) or a short term right to retract (as in the United Kingdom, where a consumer has the right to take a product back in the 30 day period following the purchase) to maintain these provisions. They also allow the member states that so wish, to introduce these kinds provisions. The third exception: this involves the duration of the legal guarantee, which the draft provision has set at two years. The compromise amendments authorise the member states that already have a longer guarantee to maintain this “when the new directive enters into force” but they do not authorise the other member states to introduce it into their national law.
According to the information we have received, the rapporteur, Pascal Arimont (EPP, Belgium), held lengthy discussions with the S&D shadow rapporteur, Lucy Anderson (United Kingdom), to prevent another rejection at the legal affairs committee (see EUROPE 11946). According to one source, Anderson requested that they clarify that in the event of conflict with other legislation, it is these examples of legislation that will prevail.
Against built-in obsolescence?
The text comprehensively applies to sales contracts between a consumer and trader, whether this involves new or second-hand goods (even though the provisions for second-hand goods are more flexible). In contrast to the position reached by the Council on the draft parallel directive on digital content, the compromise amendments also exclude integrated content (for example, the software included washing machines).
For all remaining issues, the compromise amendments do not include any provision on the life cycle of a product, in order to compel manufacturers to clearly indicate whether they are providing a commercial guarantee linked to the life cycle of a high energy consuming product or the number of years. They set the period during which the burden of proving that a consumer has indeed received a compliant product at the time of purchase remains with the trader (presumption of non-compliance) at 1 year.
If these provisions are adopted as they stand (and maintained during the negotiations with the Council), it will mean that France and Portugal - where the presumption of non-compliance stands at two years - will have to amend their national laws. (Original version in French by Sophie Petitjean)