30.11.2023

The guarantee that consumers will be satisfied with the product they buy

In a commercial environment, there are communications from traders promising, for a certain period of time, to return money to consumers simply because they are dissatisfied with the product purchased.

In a case before the courts in Germany, sports and fitness articles sold by a professional had a text on the hang tags stating that each product came with a lifetime guarantee that if the purchaser was not fully satisfied, he could return it. The German Federal Court of Justice made use of the preliminary reference instrument and referred several questions to the Court of Justice of the European Union ("CJEU") on the interpretation of EU law on the terms of the commercial guarantee and on the conditions under which the lack of satisfaction, the dissatisfaction of the buyer, can be proved. In a judgment of September 28, 2023, the CJEU[1] provided the answers to the questions raised. The judgment of the CJEU is of interest for Romanian law since this court has interpreted European Union law in a binding manner, and European Union law is also transposed into our law.

European Union and national legislation adopted to protect consumers in their dealings with professionals defines the term commercial guarantee as "any guarantee any undertaking to the consumer, set out in the guarantee certificate or in advertising available at the time of or before the conclusion of the contract, in addition to the legal obligations relating to the guarantee of conformity, to refund the price paid or to replace, repair or maintain the goods in any way if they do not correspond to the specifications or any other requirement not related to conformity."

For national legislation, we refer to the provisions of Article 2 point 14 of Government Emergency Ordinance No. 34/2014 on consumer rights in contracts concluded with professionals[2] and Article 2 point 12 of Government Emergency Ordinance No. 140/2011 on certain aspects relating to contracts for the sale of goods[3], these two ordinances being rules transposing two European Union directives, namely Directive 2011/83 and Directive 2019/771.

The legal guarantee of conformity provided for in Government Ordinance 140/2011 concerns the conformity of the goods sold in relation to certain subjective or objective requirements which are set out in Articles 5 and 6 of that Ordinance. The legal guarantee of conformity is mandatory and is automatically included in consumer contracts. The provision of a commercial guarantee is optional for the trader, but once provided, it becomes binding on the trader.

The legal guarantee of conformity relates to circumstances relating to the good sold, but the satisfaction or contentment of the customer is more a matter for the buyer.

The first question was whether this commitment of satisfaction given to the consumer can be in the nature of a commercial guarantee. The CJEU answered in the affirmative and indicated that the provisions of Directives 2011/83 and 2019/771, when defining the term commercial guarantee, refer to "any other commitment" in addition to the legal guarantee of conformity and that the expression "any other requirements" used in the two directives may cover the failure to satisfy the consumer's subjective expectations of the product purchased, independently of any objective consideration relating to the characteristics or qualities of that good[4]. The CJEU emphasized, on the one hand, that traders are under an obligation to communicate to consumers, by providing clear and intelligible information, the existence of commercial guarantees and the conditions of those guarantees and that, on the other hand, a trader's undertaking to repurchase the goods sold is an expression of the freedom to pursue a commercial activity.

On the second question of proof of the lack of satisfaction of the consumer concerned, the German Federal Court of Justice asked whether that dissatisfaction must be established objectively. The answer of the CJEU was negative because the dissatisfaction, the lack of (subjective) expectations of the consumer cannot be subject to an objectively established test. The consequence was that the mere assertion, statement of the consumer is sufficient to trigger such a commercial guarantee.

In conclusion, the undertaking given to the consumer that he will be satisfied with the product purchased is a binding commercial guarantee for the trader, and the mere statement of the consumer is sufficient to prove the absence of subjective expectations on his part.

An article by Daniel Aragea, Partner - daragea@stoica-asociatii.ro.

[1] Judgment in Case C-133/22, LACD GMBH v BB Sport GmbH & Co. KG

[2] . U.G. 35/2014 transposes the provisions of Directive 2011/83/EU of the European Parliament and of the Council of October 25, 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, published in the Official Journal of the European Union, Series L, No 304 of November 22, 2011 ("Directive 2011/83");

[3] O. U.G. 140/2021 transposes the provisions of Directive (EU) 2019/771 of the European Parliament and of the Council of May 20, 2019 on certain aspects relating to contracts for the sale of goods, amending Regulation (EU) 2017/2.394 and Directive 2009/22/EC and repealing Directive 1999/44/EC, published in the Official Journal of the European Union, Series L, No. 136 of May 22, 2019 ("Directive 2019/771").

[4] See recital 28 of the judgment in Case C-133/22