Die zeitlichen Grenzen der Gewährleistungsrechte des Verbrauchers nach der EU-Richtlinie zum Verbrauchsgüterkauf

Abstract

On the question of the time limit to which a consumer's exercise of rights of guarantee under the EU Directive on consumer sales should be subject in the future, the Common Position of the Council, to which the final version of the Directive recently approved by the negotiating committee corresponds, differs significantly from the preceding drafts. Most noteworthy is the reinforcement of the planned two year period within which a breach of the contract must become apparent for it to be covered by the rights of guarantee, with an equal minimum limitation period, in the sense of a limitation on the period within which these rights must be asserted. With the entry into force of this minimum time period for giving effect to rights of guarantee, one of the central issues for the definition of a guarantee will be harmonised to a considerable extent. That being so, however, there will no longer be any independent significance to the parallel time period for a defect to become manifest. Furthermore it is to be deprecated that the issues concerning the running or the interruption of both guarantee periods is left entirely up to the national legislator. In particular in the case of regular relations between seller and purchaser one would have expected a minimum standard to be set, especially in the light of the general comprehensiveness of the rules contained in the Directive. It is further to be criticised that in the case of the purchase of second hand goods recognition of national law rules limiting the period of the guarantee to a minimum of one year has been allowed, even though in principle a shorter time period or indeed an exclusion of liability is not permitted. In doing so a common set of interests of the parties is ignored. On the other hand, the possibility of the introduction by the Member States of a period within which a claim must be lodged seems acceptable if the consumer is appropriately informed. The minimum period provided for in this context - two months from the determination of non-conformity to the contract - is reasonable.