The ECJ held that the Consumer Sales Directive precludes national legislation under which a seller who has sold consumer goods which are not in conformity with the contract of sale may require the consumer to pay compensation for the use of those defective goods until their replacement with new goods.
As a preliminary point, the court pointed out that the seller is liable to the consumer for any lack of conformity in the goods at the time when they are delivered under Article 3(1) of the Directive.
Article 3(2) of the Directive lists the rights which the consumer may rely on against the seller in cases where the goods delivered are not in conformity. Initially, the consumer has the right to require the goods to be brought into conformity with the contract. If that is not possible, he may subsequently require a reduction in the price or rescission of the contract.
As regards the bringing into conformity of the goods, Article 3(3) of the Directive states that the consumer is entitled to require the seller to repair the goods or to replace them – in either case free of charge – unless that is impossible or disproportionate.
Thus it follows from the wording of the Directive, as well as from the related travaux préparatoires, that the Community legislator intended to make the ‘free of charge’ aspect of the seller’s obligation to bring goods into conformity an essential element of the protection afforded to consumers by the Directive.
The ‘free of charge’ requirement attaching to the seller’s obligation to bring the goods into conformity, whether by repair or replacement, is intended to protect consumers from the risk of financial burdens which, as the Advocate General observed in point 49 of her Opinion, might dissuade them from asserting their rights in the absence of such protection. The certain nature of the ‘free of charge’ aspect, which was intentional on the part of the Community legislature, means that the seller cannot make any financial claim in connection with the performance of his or her obligation to bring the goods to which the contract relates into conformity.
Support for that interpretation is to be found in the legislator’s intention - manifested by the Community legislature in the third subparagraph of Article 3(3) of the Directive - to provide effective protection to consumers. This provision states that any repair or replacement is to be completed not only within a reasonable time but also without significant inconvenience to the consumer.
That interpretation is also consistent with the purpose of the Directive which, as stated in the first recital in the preamble thereto, is to ensure a high level of consumer protection. As follows from Article 8(2) of the Directive, the protection provided by it is minimal and, although Member States may adopt more stringent provisions, they may not undermine the guarantees laid down by the Community legislature.
If a seller delivers goods which are not in conformity with the contract, he or she fails to correctly perform the obligation which he or she accepted in the contract of sale and must therefore bear the consequences of that faulty performance. By receiving new goods to replace the goods not in conformity, the consumer – who, for his part, paid the selling price and therefore correctly performed his contractual obligation – is not unjustly enriched. He merely receives, belatedly, goods in conformity with the specifications of the contract, which he should have received in the first place.
It remains the fact that the seller’s financial interests are protected, on the one hand, by the two-year time-limit laid down in Article 5(1) of the Directive and, on the other hand, by the fact that, under the second subparagraph of Article 3(3) of the Directive, he or she may refuse to replace the goods where that remedy would be disproportionate in that it would impose unreasonable costs on the seller.
In the light of all the foregoing, the answer to the question referred must be that Article 3 of the Directive is to be interpreted as precluding national legislation under which a seller who has sold consumer goods which are not in conformity may require the consumer to pay compensation for the use of those defective goods until their replacement with new goods.