JUDGMENT OF THE COURT (First Chamber)

May 23, 2019(*)

“(Reference for a preliminary ruling – Consumer protection – Directive 1999/44/EC – Lack of conformity of the consumer goods supplied – Article 3 – Right of the consumer to have the consumer goods brought into conformity with the contract free of charge within a reasonable time and without significant inconvenience – Determination of the place at which the consumer must make the consumer goods purchased at a distance available to the seller in order to bring them into conformity with the contract – Concept of bringing the consumer goods into conformity with the contract ‘free of charge’ – Right of the consumer to rescind the contract)

In Case C-52/18

REFERENCE for a preliminary ruling under Article 267 TFEU from the Amtsgericht Norderstedt (Germany), made by decision of 27 December 2017, received at the Court on 29 January 2018, in the proceedings

Christian Fülla

vs.

Toolport GmbH

enacts

THE COURT (First Chamber)

composed of: J.-C. Bonichot, President of the Chamber, J.-C. Bonichot, Judges C. Toader, A. Rosas, L. Bay Larsen and M. Safjan (Rapporteur), Judges,

Advocate General: N. Wahl,

Registrar: A. Calot Escobar,

on the basis of the written procedure,

Taking into account the declarations

– the German Government, by T. Henze, M. Hellmann, J. Möller and A. Berg, acting as Agents,

– the French Government, by D. Colas, J. Traband and A.-L. Desjonquères as authorized representatives,

– the European Commission, by N. Ruiz García and M. Noll-Ehlers, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on January 15, 2019

following

Verdict

1 This reference for a preliminary ruling concerns the interpretation of Article 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 (OJ 1999 L 171, p. 12).

2 The reference has been made in proceedings between Mr Christian Fülla and Toolport GmbH, a company incorporated under German law, in which Mr Fülla seeks reimbursement of the purchase price of a tent following his claim for rescission of the contract of sale.

Legal framework

Union law

3 Recitals 1 and 10 to 12 in the preamble to Directive 1999/44 read as follows:

“In accordance with Article 153(1) and (3) [EC], the Community shall contribute to the attainment of a high level of consumer protection through the measures it adopts pursuant to Article 95 [EC].

…

(10) If a good is not in conformity with the contract, the consumer must have the right to demand that the good be restored to its contractual condition free of charge, whereby he can choose between repair and replacement; otherwise he must be entitled to a reduction in the purchase price or termination of the contract.

(11) First of all, the consumer can demand that the seller repair the goods or replace them, unless these remedies are impossible or disproportionate. Whether a remedy is disproportionate must be determined objectively. Disproportionate remedies are remedies that cause unreasonable costs compared to other remedies; when answering the question of whether the costs are unreasonable, the decisive factor should be whether the costs of the remedy are significantly higher than the costs of another remedy.

(12) In cases of lack of conformity, the seller may always offer the consumer any available remedy in order to reach an amicable agreement. The decision to accept or reject the proposal in question is left to the consumer.”

4 Art. 1 (“Scope and definitions”) of this Directive provides in its para. 1:

“The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a common minimum level of consumer protection within the internal market.”

5 Article 2 (“Conformity with the Treaty”) of the Directive provides in its para. 1:

“The seller is obliged to deliver goods to the consumer in accordance with the purchase contract.”

6 Art. 3 (“Rights of the consumer”) of Directive 1999/44 reads:

“(1) The seller shall be liable to the consumer for any lack of conformity existing at the time of delivery of the consumer goods.

(2) In the event of a lack of conformity with the contract, the consumer shall be entitled either to the free restoration of the condition of the consumer good in accordance with the contract by repair or replacement delivery in accordance with paragraph 3 or to an appropriate reduction in the purchase price or to termination of the contract in respect of the consumer good concerned in accordance with paragraphs 5 and 6.

(3) First, the consumer may demand that the seller repair the consumer goods free of charge or replace them free of charge, unless this is impossible or disproportionate.

A remedy shall be deemed disproportionate if it would cause the seller costs which

– in view of the value that the consumer good would have without the lack of conformity,

– taking into account the significance of the lack of conformity and

– after considering whether the alternative remedy could be used 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 period of time and without significant inconvenience to the consumer, taking into account the nature of the consumer good and the purpose for which the consumer needed the consumer good.

(4) The term “free of charge” in paragraphs 2 and 3 includes the costs necessary for the production of the contractual condition of the consumer goods, in particular shipping, labor and material costs.

(5) The consumer may demand a reasonable reduction in the purchase price or termination of the contract,

– if the consumer is not entitled to either repair or replacement, or

– if the seller has not remedied the defect within a reasonable period of time or

– if the seller has not remedied the situation without significant inconvenience to the consumer.

(6) In the event of a minor breach of contract, the consumer shall not be entitled to terminate the contract.”

7 Article 8 (‘National law and minimum protection’) of Directive 1999/44 provides in its para. 2:

“Member States may adopt or maintain more stringent provisions compatible with the Treaty in the field covered by this Directive in order to ensure a higher level of protection for consumers.”

German law

8 Directive 1999/44 was transposed into German law by amendments to the German Civil Code (BGB). § Section 269 BGB (“place of performance”):

“(1) If a place of performance is neither determined nor can it be inferred from the circumstances, in particular from the nature of the obligation, performance shall be effected at the place where the debtor had his domicile at the time the obligation arose.

(2) If the liability arose in the debtor’s business, the place of business shall take the place of the place of residence if the debtor had his business establishment in another place.

(3) The mere fact that the debtor has assumed the costs of the shipment does not imply that the place to which the shipment is to be made is the place of performance.”

9 Section 439 (“subsequent performance”) of the German Civil Code (BGB) in the version applicable to the dispute in the main proceedings:

“(1) The buyer may demand, at his discretion, the rectification of the defect or the delivery of a defect-free item as subsequent performance.

(2) The Seller shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor and material costs.

(3) The seller may refuse the type of subsequent performance chosen by the buyer … if it is only possible at disproportionate cost. In particular, the value of the item in defect-free condition, the significance of the defect and the question of whether the other type of subsequent performance could be resorted to without significant disadvantages for the buyer must be taken into account. In this case, the buyer’s claim is limited to the other type of subsequent performance; the seller’s right to refuse this under the conditions of sentence 1 remains unaffected.

(4) If the seller delivers a defect-free item for the purpose of subsequent performance, he may demand restitution of the defective item from the buyer in accordance with §§ 346 to 348.”

The main proceedings and the questions referred

10 On July 8, 2015, Mr. Fülla bought a five-by-six-meter tent over the phone from Toolport.

11 After the tent had been delivered to Mr. Fülla’s place of residence, he discovered that the tent was defective and demanded that Toolport restore the consumer goods to their contractual condition at his place of residence. He did not return the tent to Toolport and did not offer to do so. Toolport rejected Mr. Fülla’s complaints about the tent as unfounded. At the same time, it did not inform Mr. Fülla that it would be necessary to transport the tent to its place of business, nor did it offer to make an advance payment for the transportation costs.

12 At that time, the parties had not agreed on the place where the contractual condition was to be restored. Furthermore, the contract concluded between the parties made no provision for this.

13 Under these circumstances, Mr. Fülla declared his withdrawal from the contract and demanded repayment of the purchase price paid for the tent concurrently with the return of the tent.

14 As Toolport did not comply with this request, Mr. Fülla brought an action before the Local Court of Norderstedt (Germany).

15 In the proceedings before the local court, Toolport argued for the first time that the place of performance of the contract was at its place of business.

16 According to the referring court, the determination of the place of bringing the goods into conformity is relevant to the question whether Mr Fülla has given Toolport the opportunity to repair or replace the goods within a ‘reasonable time’ within the meaning of Article 3(5) of Directive 1999/44 and is therefore entitled to rescind the contract under that provision.

17 In that regard, the referring court points out that, under German law, the place of performance of the contract must be determined in accordance with Paragraph 269 of the BGB, according to which the agreements made by the parties are primarily decisive. If no corresponding contractual agreements have been made, the respective circumstances of the individual case, in particular the nature of the obligation, must be taken into account. If no conclusive findings can be made from this either, the place where the debtor had his domicile or commercial establishment at the time the obligation arose is to be regarded as the place where the contractual condition was created.

18 The referring court therefore finds that, in the light of the case-law of the Bundesgerichtshof (Federal Court of Justice, Germany), Paragraph 269 of the BGB must be interpreted as meaning that the consumer is obliged to make the goods available to the seller at the seller’s place of business in order to bring them into conformity with the contract.

19 However, the referring court has doubts as to the compatibility of such an interpretation with Directive 1999/44, since, in view of the characteristics of the goods, the organization of transport may constitute a ‘significant inconvenience’ for the consumer within the meaning of Article 3(3) of that directive.

20 The place where the goods are located is the place where they are brought into conformity with the contract, which would best serve to protect the consumer to the greatest extent possible. Such an approach allows the seller to organize the most efficient way of inspecting the consumer good himself. The seller could then inspect the item at the place where it is located or have it sent to him at his expense and according to his instructions.

21 By contrast, a determination of the place where the contractual condition is established according to the respective circumstances of the individual case should be rejected, as it would lead to legal uncertainty, at least for the consumer.

22 The referring court also wishes to know whether the principle, laid down in the first subparagraph of Article 3(3) of Directive 1999/44, that the goods must be brought into conformity with the contract free of charge also covers the right of the consumer to require the seller to pay an advance on the costs incurred in transporting the goods to the seller’s place of business for the purpose of repair or replacement.

23 In those circumstances, the Amtsgericht Norderstedt decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1) Is the third subparagraph of Article 3(3) of Directive 1999/44 to be interpreted as meaning that a consumer must always offer a trader consumer goods purchased at a distance only at the place where the consumer goods are located in order to enable them to be repaired or replaced?

2. if no:

Is the third subparagraph of Article 3(3) of Directive 1999/44 to be interpreted as meaning that a consumer must always offer a trader consumer goods purchased at a distance to enable the trader to repair or replace them at the trader’s place of business?

3. if no:

What criteria can be derived from the third subparagraph of Article 3(3) of Directive 1999/44 for determining the place where the consumer must offer the trader a consumer good purchased at a distance in order to enable the trader to repair or replace it?

4. if the place where the consumer must offer the trader a consumer good purchased at a distance for inspection and subsequent performance – always or in the specific case – is at the trader’s registered office:

Is it compatible with the first subparagraph of Article 3(3) in conjunction with Article 3(4) of Directive 1999/44 for a consumer to have to pay in advance for the costs of outward and/or return transport or does it follow from the obligation to provide ‘free repair’ that the seller is obliged to make an advance payment?

5. if the place where the consumer must offer the trader a consumer good purchased at a distance for examination and subsequent performance – always or in the specific case – is at the trader’s place of business and an advance performance obligation on the part of the consumer is compatible with the first subparagraph of Article 3(3) in conjunction with Article 3(4) of Directive 1999/44:

Is the third subparagraph of Article 3(3) in conjunction with the second indent of Article 3(5) of Directive 1999/44 to be interpreted as meaning that a consumer who has merely notified the trader of the defect without offering to transport the consumer goods to the trader’s premises is not entitled to terminate the contract?

6. if the place where the consumer must offer the trader a consumer good purchased at a distance for examination and subsequent performance – always or in the specific case – is at the trader’s place of business, but an advance performance obligation on the part of the consumer is incompatible with the first subparagraph of Article 3(3) in conjunction with Article 3(4) of Directive 1999/44:

Is the third subparagraph of Article 3(3) in conjunction with the second indent of Article 3(5) of Directive 1999/44 to be interpreted as meaning that a consumer who has merely notified the trader of the defect without offering to transport the consumer goods to the trader’s premises is not entitled to terminate the contract?

Admissibility of the request for a preliminary ruling

24 According to the German Government, the admissibility of the reference for a preliminary ruling is doubtful, since the description of both the facts and the relevant provisions of national law is rudimentary and the relevance of the questions referred cannot be inferred from the facts alone.

25 In this regard, it should be noted that, according to its established case-law, the Court of Justice is in principle required to rule on the questions referred to it if they concern the interpretation of Union law. Consequently, there is a presumption that the questions are relevant to Union law. The Court may refuse to answer a question referred by a national court only if the interpretation of EU law sought is manifestly unrelated to the actual facts of the main action or its purpose, if the problem is hypothetical or if the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 7 March 2018, flightright and Others, C-274/16, C-447/16 and C-448/16, EU:C:2018:160, paragraph 46 and the case-law cited).

26 First, in the present case, the description in the order for reference of the facts set out in paragraphs 10 to 15 of the present judgment and the framework of the relevant national legislation set out in paragraphs 8 and 9 of the present judgment are sufficiently clear and complete to enable the Court to give a useful answer to the questions referred.

27 Second, as is apparent from paragraphs 16 to 22 of the present judgment, the referring court sets out the reasons why, in the main proceedings, it is asking the Court to interpret the scope of consumer rights under Article 3 of Directive 1999/44 and, in particular, why the determination of the place where the consumer must make the consumer goods purchased at a distance available for the purpose of bringing them into conformity with the contract is relevant to the outcome of the case.

28 The reference for a preliminary ruling is therefore admissible.

On the questions referred

To the first three questions

29 By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(3) of Directive 1999/44 must be interpreted as meaning that the place where the consumer is required to make available to the seller an item purchased at a distance 3 of Directive 1999/44 must be interpreted as meaning that the place where the consumer is required to make available to the seller the goods purchased at a distance in order to bring them into conformity within the meaning of that provision is always the place where the goods are located or always the place where the seller has his place of business or, if neither is the case, what criteria can be inferred from that provision for determining that place.

30 It should be recalled at the outset that, under Article 3(2) of Directive 1999/44, in the event of a lack of conformity, the consumer is entitled either to have the consumer’s goods brought into conformity with the contract free of charge by repair or replacement in accordance with Art. 3(3) of the directive or to an appropriate reduction in the purchase price or to termination of the contract in respect of the consumer goods in question in accordance with Article 3(5) and (6) (see, to that effect, judgment of April 17, 2008, Quelle, C-404/06, EU:C:2008:231, paragraph 27).

31 The first and third subparagraphs of Article 3(3) of the Directive assume that the consumer may first require the seller to repair the consumer good free of charge or to replace it free of charge, unless this is impossible or disproportionate. For this purpose, 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.

32 In that regard, although Article 3(3) of Directive 1999/44 does not specify the place where a non-conforming item is to be made available to the seller for repair or replacement, that provision does lay down certain conditions which are intended to provide a framework for bringing the goods into conformity with the contract. Thus, any repair or replacement must be carried out free of charge, within a reasonable period of time and without significant inconvenience to the consumer. This threefold requirement is an expression of the manifest intention of the EU legislature to ensure effective consumer protection (judgment of June 16, 2011, Gebr. Weber und Putz, C-65/09 and C-87/09, EU:C:2011:396, para. 52).

33 Consequently, the place where a non-conforming item is to be made available to the seller for repair or replacement must be suitable for ensuring that the item is brought into conformity with the contract in accordance with this threefold requirement.

34 As regards, first, the requirement to bring the goods into conformity ‘free of charge’, which excludes any financial claim by the seller in the context of the performance of that obligation, whether by repair or replacement of the non-conforming goods, and which is intended to protect the consumer against the threat of financial charges which, in the absence of such protection, might dissuade him from pursuing his claims (see, to that effect, judgment of 17 April 2008 in Quelle, C-404/06, EU:C:2008:231, paragraph 34). in this sense, judgment of April 17, 2008, Quelle, C-404/06, EU:C:2008:231, para. 34), the place at which the consumer must make available to the seller an item purchased at a distance in order to restore it to the condition required by the contract is irrelevant.

35 It is true that the first and second subparagraphs of Article 3(3) of Directive 1999/44 make it clear that the seller may refuse to repair or replace the goods free of charge if this would be impossible or disproportionate, that is to say, if a remedy would entail costs for the seller which would be unreasonable compared with the alternative remedy. However, the criteria set out in the second subparagraph of Article 3(3) of the Directive for assessing the disproportionate nature of such costs relate to the value that the consumer good would have without the lack of conformity, the significance of the lack of conformity and whether the alternative remedy could be used without significant inconvenience to the consumer and are applicable irrespective of the place where the consumer is required to provide the seller with the goods purchased at a distance in order to bring them into conformity.

36 Secondly, as regards the requirement that the goods must be brought into conformity with the contract ‘within a reasonable time’, it should be noted that the time taken to bring the goods into conformity may vary depending on the place where the consumer is required to make the goods available to the seller.

37 As the Advocate General stated in point 60 of his Opinion, in certain circumstances, in particular where the consumer goods are located in a country other than the seller’s place of business, it could take a considerable amount of time before the seller could carry out an inspection of the consumer goods with a view to repairing or replacing them at the place where they are located. In such a case, it is not excluded that a faster restoration of the contractual condition can be ensured by making the consumer goods available to the seller at his place of business.

38 If, on the other hand, the seller already has a service or transportation network at the place where the consumer goods are located, the goods could be brought into conformity more quickly if the seller inspects them there or transports them to his place of business himself.

39 Thirdly, the third subparagraph of Article 3(3) of Directive 1999/44 requires that the goods must be brought into conformity ‘without significant inconvenience to the consumer’, ‘taking into account the nature of the goods and the purpose for which they were required by the consumer’.

40 It follows, first, that the place where the consumer goods must be made available to the seller in order to bring them into conformity with the contract cannot be determined in such a way that the consumer does not suffer any inconvenience, since he will normally incur a certain amount of expense, for example in terms of the time required or in connection with the packaging and return of the goods, but must be determined in such a way that he does not suffer any significant inconvenience, that is to say, as stated by the Advocate General in point 68 of his Opinion, he is not subjected to any burden liable to dissuade the average consumer from exercising his rights. 68 of his Opinion – is not subjected to a burden which would be liable to dissuade the average consumer from asserting his claims.

41 In that regard, account must be taken of the fact that Article 3 of Directive 1999/44 is intended to strike a fair balance between the interests of the consumer and those of the seller by providing the consumer, as the weaker party to the contract, with comprehensive and effective protection against the seller’s poor performance of his contractual obligations, while allowing account to be taken of economic considerations invoked by the seller (judgment of June 16, 2011, Gebr. Weber und Putz, C-65/09 and C-87/09, EU:C:2011:396, paragraph 75).

42 Secondly, when assessing whether, in the context of bringing the goods into conformity with the contract, a situation is liable to cause significant inconvenience to the average consumer, account must be taken of the nature of the consumer goods and the purpose for which the consumer needed them.

43 Thus, in certain cases, both because of the nature of the consumer goods, for example because they are particularly heavy, bulky or fragile, or because particularly complex requirements must be observed in connection with their shipment, and because of the purpose for which the average consumer needs them and for which they may have to be assembled in advance, their transportation to the seller’s place of business could constitute a significant inconvenience for that consumer, incompatible with the requirements of the third subparagraph of Article 3(3) of Directive 1999/44.

44 In other cases, however, it can be assumed that in the case of compact consumer goods that do not require special handling or a special method of transportation, transportation to the seller’s place of business will not constitute a significant inconvenience for the consumer.

45 The place at which the consumer must make a consumer good purchased at a distance available to the seller in order to bring it into conformity with the contract, because it is best placed to ensure that it is brought into conformity free of charge within a reasonable time and without significant inconvenience to the consumer, therefore depends on the circumstances of the individual case.

46 In that regard, as regards legal certainty, it should be recalled that Directive 1999/44, in accordance with Article 1(1) and Article 8(2) thereof, seeks to ensure a uniform minimum level of consumer protection in the area covered by that directive. It follows from those provisions, first, that the Member States may provide in their national legislation for the place or places where the consumer must make available to the seller a consumer good purchased at a distance, so that the seller may, if the conditions laid down in Article 3(3) of the directive are fulfilled, bring the good into conformity with the contract. On the other hand, Member States may adopt or maintain stricter provisions – such as special rules for certain categories of consumer goods – in order to ensure a higher level of protection for consumers.

47 In applying national law, the national courts responsible for interpreting it must take account of all the rules of law and apply the methods of interpretation recognized in national law in order to align its interpretation, as far as possible, with the wording and purpose of Directive 1999/44, so as to achieve the result which it lays down and thus comply with Article 288(3) TFEU. The requirement of an interpretation in conformity with EU law includes the obligation of national courts to amend, where necessary, established case-law if it is based on an interpretation of national law that is incompatible with the objectives of a directive (judgment of 19 April 2016, DI, C-441/14, EU:C:2016:278, paragraphs 31 and 33 and the case-law cited therein).

48 In the light of the foregoing considerations, the answer to the first three questions is that Article 3(3) of Directive 1999/44 must be interpreted as meaning that the Member States retain jurisdiction to determine the place where, in accordance with that provision, the consumer is to make available to the seller a consumer good purchased at a distance in order to bring it into conformity with the contract. That place must be suitable for restoring the goods to conformity free of charge within a reasonable time and without significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer needed them. In that regard, the national court is required to give an interpretation which is compatible with Directive 1999/44 and, where appropriate, to amend established case-law if it is based on an interpretation of national law which is incompatible with the objectives of that directive.

The fourth question

49 By its fourth question, the referring court asks, in essence, whether Article 3(2) to (4) of Directive 1999/44 must be interpreted as meaning that the consumer’s right to have a consumer good purchased at a distance brought into conformity with the contract ‘free of charge’ includes the seller’s obligation, where the consumer good is transported to the seller’s place of business for the purpose of bringing it into conformity, to make an advance payment of the related costs.

50 According to Article 3(4) of the Directive, the term “free of charge” means the costs necessary to bring the consumer goods into conformity with the contract, in particular shipping, labor and material costs.

51 As is apparent from the case-law cited in paragraph 34 of the present judgment, that obligation to bring the consumer’s goods into conformity with the contract free of charge, which the EU legislature intended to be an essential element of the consumer protection guaranteed by Directive 1999/44, is intended to protect the consumer against the threat of financial charges which, in the absence of such protection, might dissuade him from pursuing his claims (cf. to that effect, judgment of April 17, 2008, Quelle, C-404/06, EU:C:2008:231′, paragraphs 33 and 34).

52 At the same time, as stated in paragraph 41 of the present judgment, that directive is intended not only to protect the interests of the consumer by providing him with comprehensive and effective protection against the seller’s failure to fulfil his contractual obligations, but also to ensure a fair balance with the economic considerations invoked by the seller (see, to that effect, judgment of June 16, 2011, Gebr. Weber and Putz, C-65/09 and C-87/09, EU:C:2011:396, paragraph 75).

53 In the light of these considerations, it should be noted that the seller’s obligation, when the non-conforming consumer goods purchased at a distance are transported to the seller’s place of business, to systematically pay the associated costs in advance may, on the one hand, result in more time elapsing before the goods are brought into conformity, which makes it more difficult to fulfill the contract within a reasonable period of time. This would be the case in particular if the seller does not issue prepaid return slips and is forced to pay out such an advance. On the other hand, the seller may be overly burdened by such an obligation, especially in cases where an inspection reveals that the consumer goods were free of defects.

54 In those circumstances, the balance intended by Directive 1999/44 between the interests of the consumer and those of the seller does not require that the obligation to restore the goods to conformity free of charge should include, in addition to the obligation on the seller to reimburse the consumer for the costs of transporting the goods to his place of business, the obligation systematically to pay those costs in advance to the consumer.

55 However, as is apparent from paragraphs 34 and 40 of the present judgment, that balancing exercise carried out with a view to consumer protection requires that the transport costs borne by consumers must not constitute a burden liable to dissuade the average consumer from exercising his rights. In that regard, when assessing whether such a burden is liable to dissuade the average consumer from asserting his rights, the national court must, as the Advocate General states in point 86 of his Opinion, take into account the specific circumstances of the case, including, in particular, criteria such as the amount of the transport costs, the value of the non-conforming consumer goods or the legal or factual possibility for the consumer to assert his rights if the seller does not reimburse the transport costs advanced by the consumer.

56 In the light of all the foregoing considerations, the answer to the fourth question referred is that Article 3(2) and (4) of Directive 1999/44 must be interpreted as meaning that the consumer’s right to have a consumer good 2 and 4 of Directive 1999/44 must be interpreted as meaning that the consumer’s right to have a consumer good purchased at a distance brought into conformity with the contract ‘free of charge’ does not include the seller’s obligation, where the consumer good is transported to the seller’s place of business for the purpose of bringing it into conformity, to make an advance payment of the related costs, provided that the fact that the consumer has to pay those costs in advance does not constitute a burden which is liable to dissuade him from exercising his rights; It is for the national court to assess this.

The fifth and sixth questions

57 By its fifth and sixth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(3) of Directive 1999/44, read in conjunction with the second indent of Article 3(5) thereof, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, a consumer who has informed the seller of the lack of conformity of consumer goods purchased at a distance, without making those goods available to the seller at his place of business in order to bring them into conformity with the contract, may claim rescission of the contract on the ground that the situation has not been remedied within a reasonable time.

58 In that regard, it should be noted that Article 3(3) and (5) of the Directive establishes a clear sequence for the implementation of the various remedies to which the consumer is entitled in the event of a lack of conformity of the consumer goods.

59 Thus, in accordance with the first subparagraph of Article 3(3) of Directive 1999/44, the consumer may initially demand that the consumer goods be repaired free of charge or replaced free of charge, unless this is impossible or disproportionate.

60 Only if the consumer is not entitled to either repair or replacement of the non-conforming consumer goods or if the seller has not carried out any of these remedies within a reasonable time or without significant inconvenience to the consumer, may the consumer request termination of the contract pursuant to Article 3(5) of Directive 1999/44, unless the lack of conformity is minor within the meaning of Article 3(6) of Directive 1999/44.

61 Since, as is apparent from Article 3(3) and (5) of Directive 1999/44, read in conjunction with recital 10 in the preamble thereto, that directive gives preference, in the interests of both parties, to performance of the contract by means of one of the two remedies initially provided for, rather than termination of the contract (see, to that effect, judgment of 16 June 2011, Gebr. in this sense, judgment of June 16, 2011, Gebr. Weber and Putz, C-65/09 and C-87/09, EU:C:2011:396′ para. 72), it provides for certain positive obligations for both the consumer and the seller in the event of a lack of conformity of a consumer good.

62 Thus, according to the first subparagraph of Article 3(3) of Directive 1999/44, the consumer who wishes the goods to be brought into conformity with the contract must give the seller a reasonable opportunity to bring the non-conforming goods into conformity. To this end, the consumer must inform the seller of the lack of conformity and the remedy desired – repair or replacement. In addition, the consumer must make the non-conforming consumer good available to the seller.

63 The seller must repair or replace the goods free of charge within a reasonable time and without significant inconvenience to the consumer and may refuse to do so only if it is impossible or disproportionate. As is clear from para. 60 of the present judgment, the consumer can only request termination of the contract if the seller has not complied with his obligations under Article 3(3) of Directive 1999/44.

64 In the present case, the referring court points out that the parties to the main proceedings had neither agreed nor discussed the place where the goods at issue were to be made available to the seller. On the other hand, it is apparent from the order for reference that the consumer, Mr Fülla, had informed the seller, Toolport, that the consumer goods were defective and that he had requested Toolport to restore the goods to the condition required by the contract at his place of residence, but that Toolport had failed to act. Toolport merely stated, for the first time in the proceedings pending before the referring court, that the consumer goods should have been made available to it at its place of business. According to the referring court, in view of the characteristics of the goods at issue, transportation to the seller’s place of business could have constituted a ‘significant inconvenience’ for the consumer within the meaning of Article 3(3) of the Directive.

65 In that regard, it must be held that the consumer, who clearly informed the seller of the lack of conformity of the consumer goods purchased at a distance, the transportation of which to the seller’s place of business could cause him considerable inconvenience, made the consumer goods available to the seller at his place of residence in order to bring them into conformity with the contract, without the seller having informed him of the place where the consumer goods are to be made available to him for the purpose of bringing them into conformity with the contract, or having taken any other positive action to that effect, and who has therefore not made the consumer goods available to the seller at that place, which is to be made available to him in accordance with Art. 3(3), first subparagraph, of Directive 1999/44 (see, to that effect, judgment of June 4, 2015, Faber, C-497/13, EU:C:2015:357, paragraphs 61 to 63).

66 On the other hand, the seller does not comply with his obligation to provide a remedy within a reasonable time, in the absence of which the consumer is entitled to require the termination of the contract under the second indent of Article 3(5) of Directive 1999/44, if he does not take reasonable steps at least to inspect the non-conforming goods, including informing the consumer within a reasonable time of the place where the non-conforming goods are to be made available in order to bring them into conformity with the contract.

67 In the light of all the foregoing considerations, the answer to the fifth and sixth questions referred is that Article 3(3), read in conjunction with the second indent of Article 3(5) of Directive 1999/44, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the consumer who has informed the seller of the lack of conformity of the consumer’s goods purchased at a distance 5, second indent, of Directive 1999/44 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the consumer who has notified the seller of the lack of conformity of the consumer goods purchased at a distance, the transportation of which to the seller’s place of business is likely to cause him significant inconvenience, and who has made those goods available to the seller at his place of residence in order to bring them into conformity with the contract, may, in the absence of a remedy, require the termination of the contract within a reasonable time if the seller has not taken any reasonable steps to bring the consumer goods into conformity with the contract, including informing the consumer of the place where he must make the consumer goods available to him in order to bring them into conformity. In that regard, it is for the national court to ensure, on the basis of an interpretation compatible with Directive 1999/44, that the consumer can exercise his right to terminate the contract.

Costs

68 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. The costs incurred by other parties in submitting observations to the Court are not recoverable.

For these reasons, the Court (First Chamber) ruled in its favor:

1) 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 must be interpreted as meaning that the Member States remain competent to determine the place where, in accordance with that provision, the consumer is to make available to the seller a consumer good purchased at a distance for the purpose of restoring it to conformity with the contract. That place must be suitable for restoring the goods to conformity free of charge within a reasonable time and without significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer needed them. In that regard, the national court is required to give an interpretation which is compatible with Directive 1999/44 and, where appropriate, to amend settled case-law if it is based on an interpretation of national law which is incompatible with the objectives of that directive.

2) Article 3 para. 2 to 4 of Directive 1999/44 must be interpreted as meaning that the consumer’s right to have a consumer good purchased at a distance brought into conformity with the contract ‘free of charge’ does not include the seller’s obligation, where the consumer good is transported to the seller’s place of business for the purpose of bringing it into conformity, to make an advance payment of the related costs, provided that the fact that the consumer has to pay those costs in advance does not constitute a burden on him which is liable to dissuade him from exercising his rights; This is a matter for the national court to determine.

3) Article 3(3), in conjunction with the second indent of Article 3(5), of Directive 1999/44 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the consumer who has notified the seller of the lack of conformity of the consumer goods purchased at a distance 5, second indent, of Directive 1999/44 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, the consumer who has notified the seller of the lack of conformity of the consumer goods purchased at a distance, the transportation of which to the seller’s place of business is likely to cause him significant inconvenience, and who has made those goods available to the seller at his place of residence in order to bring them into conformity with the contract, may, in the absence of a remedy, require the termination of the contract within a reasonable time if the seller has not taken reasonable steps to bring the consumer goods into conformity with the contract, including informing the consumer of the place where he must make the consumer goods available to him in order to bring them into conformity. In that regard, it is for the national court to ensure, on the basis of an interpretation compatible with Directive 1999/44, that the consumer can exercise his right to terminate the contract.

Bonichot
Toader
Rosas
Bay Larsen

Safjan
Delivered in open court in Luxembourg on May 23, 2019.
The Registrar

The President of the First Chamber
A. Calot Escobar

J.-C. Bonichot