Directive 1999/44/EC and the Smart Regulation: Has the Directive complied with the principles of simplicity and proportionality under the Smart Regulation initiative for consumers in Germany and England and Wales?
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Textbook
56 Pages
Summary
Consumption is one of the most influential, albeit dynamic, economic factors of the 21st century and, therefore, the legal rules and norms governing consumers are radically changing overtime. On European level, Directive 1999/44/EC has had a significant impact on the legal systems of member states, since its regulatory framework conflicts with well-established traditions rooted in the legal history of a country. This book will explore how and where the directive’s norms clash with national law; Germany and England and Wales will serve as examples of two opposite approaches towards its implementation. Furthermore, the effects of the directive’s incorporation into these domestic legal systems will be assessed in the light of the Smart Regulation’s normative principles of simplicity and proportionality in order to determine whether it has improved the position of the consumer or legal certainty has been once again undermined.
Excerpt
Table Of Contents
2
Introduction
From the birth of the European Economic Community as an autonomous eco-
nomically-driven organization aiming at regulation of the internal market in Europe to
its very official establishment as a Union,
1
the European Union has played a crucial role
in the dynamic economic, social and political affairs not only on the continent, but also
worldwide as a patron of European legal traditions. In this respect, modernization and
globalization encourage significant legal developments to occur, reshaping the current
normative framework. Thus, the European Union as a main actor on the international
legal scene had to restructure its legal order, namely European law,
2
in order to adapt
new changes and relate them in a coherent way with its values and principles.
3
This has been demonstrated by the initiation of the Smart Regulation in October
2010.
4
It is a successor of the Better Regulation initiative launched in 2002 and repealed
in 2006, which aims to simplify the law, repeal outdated legislative acts, reduce regula-
tory burden through regulatory fitness checks and benefit people and businesses, in
particular small and medium enterprises.
5
In this paper two of these principles will be
discussed in more detail, simplicity and proportionality respectively. On the one hand,
simplicity implies that a regulation should be as simple as possible and as detailed as
necessary.
6
Such a concept urges for simple wording and, occasionally, requires a
degree of detail for the principle of necessity; its primary goal remains combatting
excessive detail in the drafting process for the purposes of clarity and correct implemen-
tation of EU law.
7
Proportionality, on the other, is a deeply-rooted principle in EU law,
which provides that any Union action shall not exceed what is found necessary to
1
Treaty on European Union, as amended by the Maastricht Treaty (1992) OJ C 191.
2
The President of the European Commission José Barroso stated that "European law is at the heart of
what makes the European Union special" in `Better Regulation simply explained', 1.
3
Lisbon European Council, Presidency Conclusions (2000) para.1.
4
IP/10/1296 (2010).
5
ibid.; See also COM (2010) 543 final; COM (2013) 685 final 1-5; Alina Kaczorowska, European Union
Law (Routledge 2013) 154; Wolfgang Kowalsky and Peter Scherrer (ed), Trade unions for a change of
course in Europe (ETUI 2011) 111; Adam Cygan, Accountability, Parliamentarism and Transparency in
the EU (Edward Elgar Publishing 2013) 56; Tony Prosser, The Regulatory Enterprise: Government,
Regulation, and Legitimacy (Oxford University Press 2010) 80.
6
Mandelkern Group on Better Regulation (2001) 10.
7
ibid. 67.
3
achieve the objectives of the Treaties.
8
Thus, the Union shall strike a balance between
the rights it gives and the constraints it imposes for the purposes of EU law.
9
The choice
to combine simplicity and proportionality as two corners of a normative legal frame-
work is not coincidental: simplicity embraces simple and clear wording of EU law rules
and, if this rule is kept intact, the implemented rules would lead to proportionate
outcomes to European citizens. For this reason, their interrelation deserves to be paid a
closer attention.
The European Commission already outlined the importance of the interdepend-
ence of these two principles; in a Commission Staff Working Paper focused on monitor-
ing and consultation of small and medium enterprises (SMEs) in March 2013 European
organizations admitted the burdensome character of some aspects of Directive
1999/44/EC on the sale of consumer goods and associated guarantees on consumers.
10
As a result, the Commission suggested that the solution thereof would be to consolidate
and simplify the law on consumer protection as to ensure more effective rights for
consumers;
11
additionally, social campaigns such as the Consumer Rights Awareness
Campaign aim to promote consumer protection and inform citizens of their rights within
the Union.
12
For this reason, this legal challenge is the focus of this paper, in particular arti-
cles 3 and 5 of the Consumer Rights Directive, respectfully on the newly adopted
system of remedies and the imposed two-year warranty period. Furthermore, a closer
insight into the application of these provisions of the Directive in two legal regimes will
be provided, on the one hand Germany, being a classical example of a straight-forward
civil law system, and on the other England and Wales as part of the well-established
common law tradition. In conclusion, a short summary of possible improvements with
8
Consolidated Version of the Treaty on European Union (2008) OJ C 115/13 article 5, para.4; See also
COM (2010) 547 final.
9
Mandelkern Group on Better Regulation (n 6) 9.
10
SWD (2013) 60 final at 17, 19, 22 and 24.
11
COM (2013) 685 final (n 5) 7; Annex to COM (2013) 685 final 5.
12
Consumer Rights Awareness Campaign has been organized by the EU Commission and it is running
from from 17.03.to 31.12.2014 in order to raise awareness among consumers about their rights and
obligations under EU law. For more detailed information, visit
http://ec.europa.eu/justice/newsroom/consumer-marketing/event/140317_en.htm (accessed 10 March
2014).
4
regard to the German, English and European order will be provided in order to ensure a
higher level of legal certainty and consumer protection.
Thus, the research question of this thesis concerns whether the Consumer Rights
Directive complies with the principles of simplicity and proportionality within the
Smart Regulation normative framework as applied in Germany and England and Wales.
For this purpose, the three legal orders will be discussed separately: EU, German and
English consumer law, followed by an analysis of the application of articles 3 and 5 of
the Directive into these two national legal orders and their implications in the light of
the principles of simplicity and proportionality under the Smart Regulation. At the end
of this paper, concluding remarks will be made based on the conclusions of the analysis
as to whether or not the application of this directive provides high level of protection
and, thus, legal certainty to consumers and suggestions will be provided for the im-
provement and harmonization of the future EU consumer law order and its intersection
with national traditions.
Throughout this research I have consulted work of academic writers and law-
yers, papers and communications, as well as annexes and initiated investigations,
parliamentary discussions, explanatory notes, EU legislation, case law of the German
Supreme Court, the European Court of Justice and reports of the Law Commission in
the UK and Scotland. In addition, I have consulted Dr. Michael Jänsch, professor in
German civil law, for further clarification and a better understanding of the law of
obligations in Germany.
5
Chapter 1: Article 3 and 5 of Directive 1999/44/EC
The starting point of this paper would logically be the Consumer Rights Di-
rective, as it lies in the heart of the discussion.
1
A brief discussion on the legal basis of
the Directive will be provided and then reader's attention will be focused on two
specific articles, namely article 3 and 5, referring to the newly proposed remedial
system and the two-year warranty period. Finally, a short summary of relevant case-
law of the European Court of Justice ("the ECJ") in relation to these provisions, in
particular article 3, will be included in order to illustrate the court's interpretation of
the Directive with regard to its application and interpretation on national level.
Section 1: Legal basis
The Consumer Rights Directive itself refers to article 169 [ex article 153 TEC]
of the Treaty on the Functioning of the European Union as a legal source, which
promotes high level of protection for consumers.
2
This concept has been further
embraced by the drafters, as recitals 1 and 23 demonstrate.
3
An important remark would
be that this rule is applicable pursuant to article 114 [ex article 95 TEC] of the same
Treaty, which envisages the ground-laying idea of the Directive as a whole to serve as a
means for minimum harmonization;
4
the intent of the legislator seems to have adopted
this line of thought judging by several recitals.
5
Thus, based on the principles embedded
in the Treaties, the Consumer Rights Directive should be interpreted as a tool for
1
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 [hereinafter referred as "The Directive"].
2
Consolidated version of the Treaty on the Functioning of the European Union [hereinafter referred as
"TFEU"] (2008) C 115/01 article 169, para. 1.
3
Recital 1 and 23 of the Directive refer to the substantial contribution of the Community for the
achievement of a higher level of protection, which is considered a growing concern in the light of EU
law.
4
ibid. recital 1; TFEU (n 2) article 114, paras. 4-5; See also Iris Benöhr, EU Consumer Law and Human
Rights (Oxford University Press 2013) 31; Stephen Weatherill, `Maximum versus Minimum Harmoniza-
tion: Choosing between Unity and Diversity in the Search of the Soul of the Internal Market' in Niamh
Shuibhne and Laurence Gormley (ed), From Single Market to Economic Union: Essays in Memory of
John A. Usher (Oxford University Press 2012) 182-183; Hans-W. Micklitz, `Federal Order of Compe-
tence and Private Law' in Loïc Azoulai (ed), The Question of Competence in the European Union
(Oxford University Press 2014) 148.
5
Recitals 2 and 5 of the Directive refer to a `minimum set of fair values'/ `minimum rules of consumer
law', whereas recital 4 straight-forwardly asserts the dominant concern of an absence of minimum
harmonization with regard to consumer law rules.
6
minimum harmonization in its transposition to national law orders, since it provides
member states with the open opportunity to impose stricter rules on specific areas.
6
Section 2: Article 3 of the Consumer Rights Directive
One of the main points of discussion in this paper is the newly adopted system of
remedies under article 3 of the Directive. The provision itself lays its basis on the
principle that the seller is responsible for any lack of conformity on his behalf with
regard to the goods delivered.
7
However, the Directive provides an opportunity for
specific performance for the seller to repair or replace the faulty good free of charge or
either to reduce the price of the good or to have the contract terminated with regard to
the good.
8
As it can be observed from this provision, the Consumer Rights Directive
imposes a strict hierarchy of remedies available under the EU regime: the first trier of
remedies is repair or replacement, unless it is found impossible or disproportionate.
9
For
this purpose, a disproportionality test is implemented to help the seller determine which
one of the two remedies to choose, depending on the initial value of the goods, the
degree of the lack of conformity and assessing whether an alternative remedy would be
more convenient for the consumer.
10
Moreover, both repair and replacement should be
performed within a reasonable time period and shall not be detrimental to the conven-
ience of the consumer.
11
In case both options under the first trier are found either
impossible or disproportionate, the consumer should have access to the second trier of
relief, namely reduction of price or termination of contract. As it seems, the newly
adopted set of rules with regard to remedies appears to be a straight-forward system
with reasonable amount of detail for the purpose of clarity.
6
Recital 7 resembles the rule adopted in para.5 of article 114 of the Directive.
7
The Directive (n 1) article 3, para. 1.
8
ibid. para. 2.
9
ibid. para.3.
10
ibid.
11
ibid.
7
Section 3: Article 5 of the Consumer Rights Directive
Pursuant to article 3, another central issue is the uniform set limitation period for
lodging a claim due to lack of conformity on behalf of the seller with regard to any
faulty goods delivered, which according to article 5 of the Directive lasts two years.
12
The provision also refers to an open legal possibility for member states to oblige the
consumer to inform the seller of any lack of conformity of the goods within the period
of two months from the date of delivery;
13
however, the usage of the word `may' in the
provision implies that the choice to enforce it lies with the will of the legislator of each
member state. Furthermore, under paragraph 3 of the article in question any lack of
conformity with the good within six months from the date of delivery is presumed to
have existed from the beginning.
14
Nonetheless, for the purposes of this research, this
paper emphasizes only on the legal implications of article 5, paragraph 1 with regard to
the timeframe for claims, which varies from two, as in Germany for instance, to six
years in England and Wales, since member states are allowed to impose stringent rules
for a higher level of consumer protection.
15
Section 4: Interpretation of article 3 in the light of the case-law of the
European Court of Justice
The case-law of the European Court of Justice ("the ECJ") has explored a legal
vacuum, in particular in relation to article 3 of the Directive. One of the most important
cases for its correct interpretation with regard to the newly adopted remedial system as
implemented into national legal orders is considered to be the Quelle AG v Bun-
desverband der Verbrauchzentralen und Verbraucherverbände case ("Quelle AG").
16
The German legislator adopted article 3 into the domestic legal order, leaving the
consumer responsible for covering expenses for the usage of a faulty good, an interpre-
12
ibid. article 5, para. 1.
13
ibid. para. 2.
14
Article 5, para.3 of the Directive refers to the nature of both the good and the lack of conformity as the
only exceptions of this rule.
15
The Directive (n 1) recital 24 and article 8, para. 2; See generally Nicolas Ryder et al, Commercial
Law: Principles and Policy (Cambridge University Press 2012); Eric Baskind et al, Commercial Law
(Oxford University Press 2013) 446.
16
Case C-404/06 Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände ECR
I-2685 [hereinafter referred as "Quelle AG"].
8
tation which the ECJ contested. The discussion in this case highlights the importance of
the general and underlying principle under article 3, paragraph 1 that the seller is
initially responsible for any lack of conformity of the delivered goods;
17
furthermore,
the court reiterated that regardless of the choice of a remedy under article 3, paragraph
3, either repair or replacement, the term `free of charge' within this provision is not
coincidental: its function is to reflect "the intention of the Community legislature to
strengthen consumer protection".
18
The most relevant conclusion of this case would be
that the consumer should not pay for the usage of a faulty good.
19
Judging by the recent case-law of the ECJ, article 3 seems to be ambiguous in its
wording and, thus, in its application into domestic legal systems and national courts
appear to have been faced with a legal lacuna in the Directive. In this respect, another
case in point would be the joined case Gebr. Weber GmbH/Ingrid Putz ("Gebr. We-
ber/Ingrid Putz").
20
Due to misinterpretation on behalf of the German legislators when
adopting article 3 into the national legal framework, the disproportionality rule embed-
ded in this provision has been expanded in two dimensions, implying two different
scenarios which can be taken into account: relative and absolute proportionality.
Applying the former, repair and replacement are weighted against each other and in the
case of the latter, even one of both remedies is available, it should not be granted in case
its application would amount to great and excessive disproportionality to the detriment
of the seller.
21
However, this line of interpretation has been rejected by the ECJ, arguing
17
ibid. 26.
18
ibid. 30.
19
ibid. 43. See also Hannes Rösler, Europäische Gerichtsbarkeit auf dem Gebiet des Zivilrechts (Mohr
Siebeck 2012) 162; Christian Twigg-Flesner, The Europeanisation of Contract Law: Current Controver-
sies in Law (Routledge 2013) 108; Christian Twigg-Flesner, `Fit for purpose? The Proposals on Sales' in
Geraint Howells and Reiner Schulze (ed), Modernising and Harmonising Consumer Contract Law (Selier
Europeal Law Publishers 2009) 170; Stephen Weatherill, `Consumer Policy' in Paul P. Craig, Gráinne De
Búrca (ed), The Evolution of EU Law (Oxford University Press 2011) 859; Peter Rott, ``Technical
Harmonization' versus Substantive Differences' in Alessandro Somma (ed), The Politics of the Draft
Common Frame of Reference (Kluwer Law International 2009) 172; See generally Ulrich Magnus,
`Consumer sales and associated guarantees' in Christian Twigg-Flesner (ed), The Cambridge Companion
to European Union Private Law (Cambridge University Press 2010).
20
Joined Cases C-65/09 and C-97/09 Gebr.Weber GmbH v Jürgen Wittmer, and Ingrid Putz v Medianess
Electronics GmbH [2011] ECR I-5257 [hereinafter referred as "Gebr. Weber"].
21
Christian Twigg-Flesner, The Europeanisation of Contract Law: Current Controversies in Law (n 19);
Deutscher Bundestag, Drucksache 14/6040, 219-220; See also Florian Faust, `Das Kaufrecht im
Vorschlag für ein Gemeinsames Europäisches Kaufrecht' in Hans Schulte-Nölke et al (ed), Der Entwurf
für ein optionales europäisches Kaufrecht (Selier European law Publishers 2012) 258.
9
that it would deprive the consumer of a short-term remedy.
22
Furthermore, such practice
would contradict with the aim of the Directive to provide a high level of consumer
protection.
23
According to the court's reasoning, if the only available remedy is not
impossible, then it has to be granted to the consumer at expense of the seller, thus, the
relative disproportionality test was favoured.
24
As it can be deduced by Gebr. We-
ber/Ingrid Putz ruling, the notion of legal expectations of non-faulty goods finds its
roots in the very core of the right to consumer protection, which corresponds directly to
the line of argumentation in the Quelle AG case, where the `free of charge' principle
prevailed on this ground.
25
Section 5: Conclusion
In conclusion, it can be summarized that articles 3 and 5, respectfully in relation
to remedies and the two-year limitation period for claims, raise additional questions
with regard to their application into national law orders, as demonstrated by the ECJ
case-law developments, such as Quelle AG and Gebr. Weber/Ingrid Putz. In order to
identify these legal gaps it should first be made a brief introduction into the two separate
legal frameworks this paper focuses on, namely the German civil law system and the
English common law order.
22
Gebr. Weber (n 20) 65.
23
ibid.
24
ibid. 68.
25
ibid. 46, 49-53; Quelle AG (n 16) 33-34; See also n 19.
10
Chapter 2: The German domestic order and the legal transposi-
tion of articles 3 and 5 of the Consumer Rights Directive
The discussion on the Quelle AG
1
and Gebr. Weber/Ingrid Putz
2
cases logically
is followed by a short introduction to the German legal norms as affected by the
implementation of the Consumer Rights Directive
3
. For this purpose, the major signifi-
cance of this piece of EU legislation will be illustrated in relation to the foundation of
contemporary German civil law rules resulted in the newly adopted version of the
German civil code (Bürgerliches Gesetzbuch, "the BGB"). Therefore, special attention
will be drawn to sections 437, 438 and 439 of the BGB, which mirror articles 3 and 5 of
the Directive. In conclusion, a reference will be made to the legal inconsistencies
between the formulation of the German legislators and the wording of the Directive,
problems which will be discussed in detail in Chapter 4.
Section 1: Legal historical developments in German civil law
The debates in Germany about a radical reform in civil law date from 1979,
when an initiative was undertaken by the Minister of Justice to issue a report on German
contract law.
4
After the unification and the establishment of the Federal Republic of
Germany, a Commission Reforming the Law of Obligations recalled the need for a new
order and referred to the fore-mentioned commissioned study;
5
the efforts of the
Commission resulted in an extensive report, but it did not lead to any initiative by the
legislator. It was not until the millennium a reform of the German civil code appeared
on the agenda, when the competitive struggle in cross-border transactions became
1
Case C-404/06 Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände
[2008] ECR I-2685.
2
Joined Cases C-65/09 and C-97/09 Gebr.Weber GmbH v Jürgen Wittmer, and Ingrid Putz v Medianess
Electronics GmbH [2011] ECR I-5257.
3
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 [hereinafter referred as "The Directive"] OJ L
171.
4
Peter Pott and Christian Twigg-Flesner, `No Closer to Harmonisation? The Implementation of Directive
1999/44/EC into English and German Law Three Years On' in Geraint Howells et al (ed), The Yearbook
of Consumer Law 2007 (Publisher 2007) 122; See also Ulrich Huber in BMJ (ed), Gutachten und
Vorschläge zur Überarbetung des Schulrechts (Bundesanzeiger Verlag, 1981); Yoshio Shiomi, `Modern-
ization of German Civil Law' in Zentaro Kitagawa and Karl Riesenhuber (ed), The Identity of German
and Japanese Civil Law in Comparative Perspectives/Die Identität des Deutschen und des Japanischen
Zilivrechts in vergleichender Betrachtung (De Gruyter Rechtswissenschaften Verlags GmbH 2007) 67.
5
ibid.
11
apparent and called for a legislative change.
6
There were also practical reasons for
Germany to undertake such action, such as the simultaneous implementation of three
European Directives, namely the Consumer Sales and Associated Guarantees Directive,
the Directive on Late Payments and the Directive on Electronic Commerce.
7
Moreover,
the Minister of Justice at that time Prof. Dr. Herta Däubler-Gmelin, expressed her
concern that a failure to compile the law would inevitably cause complications in its
application, since four different sets of rules the three Directives and the former
German civil code, have to be applied simultaneously.
8
Furthermore, as the time for
implementation of the Consumer Sales and Associated Guarantees Directive expired on
31 December 2001, this served as an impetus for the German Bundesrat to radically
reconsider the German civil law approach.
9
Section 2: The legal shift from Waldung and Minderung to Nacherfül-
lung implementation of article 3 of the Consumer Rights Directive
into German law
The German law of obligations before 2002 was heavily influenced by old
Roman law traditional principles, for instance the right to direct revocation of a contract
(Waldung).
10
It refers to the warranty theory (Gewährleistungstheorie), which empow-
ered the consumer to directly return the good to the seller and request a reduction of
price (Minderung).
11
However, this exclusive right rested with the consumer only upon
delivery.
12
While such practice places the buyer indisputably in a very disadvantageous
6
Peer Zumbansen, `The Law of Contracts' in Mathias Reimann and Joachim Zekoll (ed), Introduction to
German Law (Kluwer Law International 2005) 201.
7
The Directive (n 3); Directive 2000/35/EC of the European Parliament and the Council of 29 June 2000
on combating late payment in commercial transactions OJ L 200; Directive 2000/31/EC of the European
Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the internal market OJ L 178; Deutscher Bundestag, 166. Sitzung,
16213 (B).
8
ibid. 161215 (A).
9
ibid.; See also Peter Pott and Christian Twigg-Flesner (n 4); Yoshio Shiomi (n 4) 67-71; Peer Zumban-
sen (n 6).
10
Law Commission, Appendix D `Comparative Consumer Law' 11, para.D.37; See generally Reinhard
Zimmermann, `Characteristic Aspects of German Legal Culture' in Mathias Reimann and Joachim Zekoll
(ed), Introduction to German law (Kluwer Law International 2005); Reinhard Zimmermann, The Law of
Obligations: Roman Foundation of the Civilian Tradition (Clarendon Press 1996).
11
ibid. Law Commission para. D.39; Deutscher Bundestag, Drucksache 14/6040, 89;Peter Pott and
Christian Twigg-Flesner (n 4) 134;Thomas Meiers, Die Entwicklung und Reform der Sachmängelhaftung
des Verkäufers beim Stückkauf (Peter Lang GmbH 2010) 30.
12
ibid.; See n 10.
12
position, since their rights expire after the moment of delivery, especially with regard to
goods, which need to be examined more carefully to establish fault, paragraph 3 of
article 3 of the Consumer Rights Directive provides a hierarchy of remedies which rely
predominantly on the right to request a specific performance;
13
as a result, German law
adopted the performance theory (Erfüllungstheorie) in section 437, as the seller is
granted the opportunity to exercise a subsequent performance (Nacherfüllung) based on
the right to cure the consumer for the delivery of a faulty good.
14
According to the newly
adopted rules in line with the Directive, under the new order of the BGB a consumer has
the right to request a repair or replacement from the seller under the first trier of
consumer protection rights incorporated in section 439, unless it would is dispropor-
tionate or impossible;
15
for the purpose of choosing a remedy, the disproportionality test
under article 3, paragraph 3 of the Directive has been implemented under section 439,
number 3 in a two-fold fashion: relative and absolute disproportionality, which was
already discussed briefly in the previous chapter. Furthermore, the right to reduction of
price and termination of contract remain available to the consumer as a second trier of
remedies.
16
As it seems, the intent of the BGB draft committee was to use the Directive
as a tool for harmonization, clarification and modernization of the German law of
obligations.
Section 3: From six months to two years implementation of article 5
into the German legal order
The transposition effects of the Directive in Germany have had a particularly
beneficial effect for consumers with regard to the right to lodge a claim.
17
In compari-
13
Peter Rott, `German Sales Law Two Years After the Implementation of Directive 1999/44/EC' (2004)
5 German Law Journal 238-239; The Directive (n 3) article 3, para. 3.
14
Bürgerliches Gesetzbuch 2002 [hereinafter referred as "BGB"] s 437; Section 433 refers to the
obligation of the seller to deliver goods in conformity with a contract;See also Christian Zwarg, Der
Nacherfüllungsanspruch im BGB aus der Sicht eines verständigen Käufers (Peter Lang GmbH 2010) 31;
Gesa Kim Beckhaus, Die Rechtsnatur der Erfüllung: Eine Kritische Betrachtung der Erfüllungstheorien
unter besonderer Berücksichtigung der Schuldrechtsmodernisierung (Mohr Siebeck 2012) 259; Volker
Emmerich, BGB-Schuldrecht Besonderer Teil (C.F. Müller 2012) 18.
15
ibid. BGB s 437, n 1 pursuant to s 439; Norbert Reich, `Protection of Consumers' Economic Interests
by EC Contract Law -- Some Follow-up Remarks' (2006) 28 Syd LR 52; See generally Peter Rott,
`Minimum Harmonisation for the Completion of the Internal Market? The Example of Consumer Sales
Law' (2003) 40 CML Rev 1107.
16
ibid. BGB n.2 and 3; The Directive (n 3) article 3, para. 5.
17
BGB (n 14) s 438.
13
son to the early rule on claims, which limited this right to only six months, after the
incorporation of the two-year provision into section 438 of the German civil code the
time to lodge a complaint has increased four times.
18
As a result, German consumers
now enjoy a four times longer period for lodging claims. The drafters of the BGB found
practical and economic reasons for including this limitation period in the new civil law
code.
As a starting point, the expiry time for implementation of the Directive was 31
December 2001, which in practical terms means that from 1 January 2002 consumer
groups would be empowered to seek damages, if the member state, in this case Germa-
ny, had failed to implement EU legislation on time.
19
Since the right to lodge a com-
plaint for German consumers was substantially extended in time by the Consumer
Rights Directive, it can be suggested that there was a very distinct chance that there
might have been claims raised under the Francovich doctrine. Another issue that has to
be taken into careful consideration is that even if the state implemented the Directive
timely that would have had practical complications for the courts in the application of
national law rules on equal footing with other EU law provisions, meaning there will be
several parallel existing orders with regard to sale of goods in Germany.
20
On these
grounds from an exclusively practical standpoint Germany had already had enough
incentives to undertake immediate measures for the incorporation of the two-year
limitation period.
Another argument in favour of the implementation of article 5 of the Consumer
Rights Directive is that the longer limitation period would contribute greatly to the
overall satisfaction of consumers, especially when they buy goods at the end of the
season on a discount. According to the drafters of the new BGB, a person who buys ski
equipment at the end of the winter season and does not use it throughout the summer
18
Manfred Lange et al, Sachversicherungen für private und gewerbliche Kunden Fach- und
Führungskompetenz für die Assekuranz (Verlag Versicherungswirtschaft 2014) 168; Marco Ardizzoni,
German Tax and Business Law (Sweet & Maxwell 2005) 1035; Axel-Volkmar Jaeger and Götz-Sebastian
Hök, FIDIC - A Guide for Practitioners: A Guide for Practitioners (Springer 2010) 312; Pierrick Le
Goff, Die Vertragsstrafe in internationalen Verträgen zur Errichtung von Industrieanlagen (Tanea 2005)
172; See generally Hergen Scheck and Birgitt Scheck, Wirtschaftliches Grundwissen: Für Naturwissen-
schaftler und Ingenieure (JohnWiley & Sons 2012).
19
Joined Cases C-6/90 and C-9/90 Andrea Francovich v Italian Republic and Danila Bonifaci and Others
and Italian Republic [1991] ECR I-5375.
20
See n 4.
