– December 06, 2018 – Company
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- A defect on a guaranteed device? You may have to prove that he was there from the beginning…
The legal guarantee of conformity is in danger of being seriously undermined. At least that is what five French associations, including UFC-Que Choisir, fear. In a press release issued on 4 December, they expressed their alarm at a reform of European legislation in this area. Indeed, it provides for a maximum duration of one year for this legal guarantee of compliance.
“The text as it stands therefore results in a halving of this presumption! An unacceptable situation for French consumers to whom it would be up to prove the origin of the defect beyond the first year, too often a struggle for those who do not necessarily have the necessary means, time or expertise,” writes the consumer protection association.
When you buy a product in a shop, there is a provision in the Consumer Code that says that you have a two-year period during which any defect that appears is presumed to have existed when you bought the good, unless the trader proves otherwise – the burden of proof is thus on the consumer.
This provision is called the legal guarantee of conformity. Consigned to article L217-7 of the Consumer Code, it has been in force since March 18, 2016, the date on which an order allowed it to come into force. But its origin goes back further: it actually comes from the Hamon law on consumption, which was promulgated in mid-March 2014.
With this measure, which covers several cases, you can obtain a refund from the seller or replacement of the product if it is a movable good (for example a computer or any other electronic device) when the defect affects the good itself, but also the packaging, assembly instructions or the installation carried out by the seller.
// Source : Benoît Hamon
According to the UFC-Que Choisir and its allies, it is the European Parliament and the Council that are pushing for such harmonization among the member countries, without leaving any space for states that would like to go further – like France in this case, but Portugal is in the same situation. Conversely, the European Commission was initially more in favour of the French positions.
It is not a question here of calling into question the idea of harmonization between nations, the association says, but of ensuring that it “is inspired by the best standards” and that it avoids blocking “any possible progress at the national level“. For the time being, however, the envisaged trajectory is “at odds with the debates on the circular economy aimed at better product sustainability and reparability“.
The European Parliament’s position on this provision is in fact that of a specialised committee, the Internal Market and Consumer Protection Committee (IMCO). On 22 February 2018, the Commission approved the mandate to start negotiations with the Council of the European Union – in which the Member States are represented.
The European Parliament // Source : European Union 2014 – European Parliament
In its press release, the IMCO commission referred to a maximum period of one year after purchase during which the buyer does not have to prove that the goods were defective at the time of delivery. However, it is also stated that the trader may remain liable if the defect appears within two years of receipt of the product by the consumer.
“Member States could, however, maintain a longer guarantee period in their national legislation, in order to preserve the level of consumer protection already granted in some countries,” the press release added. At first sight, the European provision seems to preserve the French specificity on the legal guarantee of conformity.
However, on 2 March, the European Parliament referred to a different mechanism: while MEPs agree that the seller should be liable if a defect appears within two years of the customer receiving or buying the product, the burden of proof should be changed along the way: for the second year, it will be up to the consumer to prove that he is not responsible for the defect.
“We therefore call on the government to maintain pressure on this national priority, in line with the commitments made in its roadmap,” the associations concluded. According to them, this issue must be addressed by the ministers of the 28 Member States … this Thursday 6 December.
Article originally published on 6 December 2018
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