Consumer Sales and Guarantees Directive, Article 5, 3.

Provided that the trader provides evidence that the defect may have been caused after the goods are delivered to the consumer, the inspection body is obliged to gather additional evidence and discuss the nature of the non-compliance and only then can it be accepted that the presumption of Art. 108 of the Consumer Protection Act/Art. 5, Para. 3 of Directive 1999/44/ has not been rebutted.

Following a consumer complaint, the Consumer Protection Commission imposed a property sanction on a trader for unjustifiably refusing to bring a consumer good - a mobile phone - into compliance. The trader presents photographic material, which shows that the device has serious corrosion due to wetting and claims that this was due to negligence of the consumer and the defect occurred after the goods were delivered to him.

How should the control body react when the trader provides evidence from which it is evident that it is possible that the defect, which has manifested itself within the 6-month period under Art. 108 of the Consumer Protection Act / Art. 5, Para. 3 of Directive 1999/44 /, has been caused after the goods have been delivered to the consumer?

The Administrative Court considers that, in the event that the trader refuses to satisfy a complaint, presenting evidence showing that the defect is likely to have been caused after the goods have been delivered to the consumer, the Consumer Protection Commission, in its capacity as of a control body, must gather additional evidence and discuss the nature of the non-compliance and whether it is compatible with the presumption of Art. 108 of the Consumer Protection Act / Art. 5, Para. 3 of Directive 1999/44 / and only then can determine whether there is a violation of the law. In particular, the Commission should have collected additional information on the condition of the telephone and possible reasons for this, as the defect (corrosion) found was not indicated by the user when filing the complaint and was not reflected in the complaint report. The Court emphasizes that the role of the CPC in ensuring the protection of consumer rights does not mean a biased and unilateral resolution of individual cases, but requires full and comprehensive clarification of all facts relevant to the dispute and an objective assessment of the evidence gathered.

As in this case it has not been proved beyond a reasonable doubt that the trader has committed an administrative violation, which is expressed in refusing to bring the defective goods in accordance with the contract, the court revoked the sanction imposed.

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Gabrovo Administrative Court confirms the decision of the Gabrovo District Court, which annulled the penal decree of the Consumer Protection Commission.