Definition of "seller" within the meaning of directive 1999/44 on guarantees for consumer goods

The Court of Justice of the European Union (CJEU) responded on 9 November 2016 to a request for a preliminary ruling on the interpretation of article 1, paragraph 2, sub-paragraph c) of directive 1999/44 of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (CJEU, 9 November 2016, C-149/15, Sabrina Wathelet vs Garage Bietheres).

The directive, which provides for the creation of a legal guarantee of conformity applicable to consumer goods, was transposed into French law by the Order dated 17 February 2005. Its provisions currently appear in articles L.217-1 et seq. of the French Consumer Code.

As a reminder, this public-policy legal guarantee of conformity applies to all sales contracts for tangible personal property concluded between a seller acting within the framework of its professional or commercial activity and a purchaser acting as a consumer. It requires the seller to deliver goods to the consumer which are in conformity with the contract and to address any lack of conformity that exists on delivery of the goods. Since 18 March 2016, conformity defects which appear within 24 months of delivery of the goods (six months for second-hand goods) are presumed to have existed at the time of delivery, unless the seller can prove otherwise.

This guarantee protecting consumers is combined with traditional sales warranties, such as the latent defects warranty stipulated in articles 1641 et seq. of the French Civil Code. It also applies in addition to any commercial warranties referring to warranties of a contractual nature offered to consumers by professional sellers, which must strictly be subject to a written contract.

In this case, a Belgian consumer acquired a second-hand vehicle from a garage. The vehicle broke down a few months after the sale due to an engine failure. When the consumer contacted the garage, it informed her that it had not sold her the vehicle on its own account, but on behalf of a private individual. Having acted simply as an intermediary in a sale which was in fact concluded between consumers, the garage, which did not own the vehicle, did not consider itself as bound by a legal guarantee of conformity.

Since, in principle, sales between consumers are not covered by this guarantee, a purely literal interpretation of the directive could preclude application of that guarantee in the situation presented. The question nevertheless arises of whether the involvement of the professional, presenting itself to the consumer as a seller of consumer goods, could nonetheless imply application of the protective provisions of the legal guarantee of conformity.

The CJEU found that to be the case : the notion of "seller" within the meaning of that directive also covers a professional acting as an intermediary on behalf of a private individual, when it has not duly informed the consumer making the purchase of the fact that the owner of the goods being sold is a private individual.

The reality of whether the consumer was informed of the seller's true status may, according to the CJEU, be verified by the following elements: concrete efforts made by the professional in respect of the sale, the extent of the correspondence and dialogue between the consumer and the professional, the fact that the consumer made payment for the goods to the professional, and expenses incurred by the professional in respect of the sale, insofar as the consumer is aware of them.
This solution relies on a teleological interpretation of the directive in the sense that it is based on the purpose of the directive, which is to ensure a high level of consumer protection.

It also appears justified since it resolves a situation in which the professional intermediary, due to a lack of information regarding the seller's status, misleads the consumer by making it appear as though the guarantee applies. Perhaps it would therefore also be possible to see in this CJEU decision an application of the theory that appearance gives practical effect to the "legitimate belief" of persons acting in good faith who are deceived by an appearance.

Some questions remain after this judgement, however. Is the private seller entirely substituted by the professional intermediary as the "seller" within the meaning of the directive? In other words, could the consumer making the purchase invoke the legal guarantee against the private individual selling the goods or only against the professional? Could any recourse action be brought against the private individual selling the goods by the professional intermediary within the meaning of article L.217-14 of the French Consumer Code?