Legal and commercial guarantee
The Network of European Consumer Centres (ECC-Net) is often contacted by consumers who purchased a defected product. Many of them don't know who they can contact or what they are entitled to. A study now shows that the traders themselves, consciously or unconsciously, contribute to that uncertainty.
ECC study points towards problem areas
Lead by ECC Germany, the ECC-Net conducted a comprehensive investigation regarding legal and commercial guarantees in the EU Member States, Norway and Iceland. Besides a legal analysis of the implementation of EU directives in the countries, common practices in online and local shops were examined ("mystery shopping").
In total, 342 samples in 25 EU Member States were taken between October 29th and November 14th, 2015. Furthermore, ECC Belgium made a survey with over 500 consumers, asking them about their experiences.
In most cases, the information regarding legal and commercial guarantee given by the trader was either unclear, unprecise or incomplete. This contributes to the situation that consumers are not aware about their entitlements and rights. The study showed that traders often offer a commercial guarantee without indicating that a legal guarantee exists. In order to know whether the commercial guarantee pays off and represents added value to the mandatory legal guarantee, consumers have to have all necessary information and know the legal situation.
To simplify this process for consumers, the ECC-Net created a checklist based on the study. A FAQ sheet gives an overview of the most important details regarding legal and commercial guarantee. The study itself is only available in English and can be downloaded for free (see link on the right). A summary and country overview table is attached to this article.
Problems with cross-border shopping
Every country has implemented the directives regarding legal guarantee a little different and commercial guarantees may have geographic limitations. This means: If a consumer orders goods from another EU Member State and additionally purchases a commercial guarantee, it may happen that the consumer can't use all services. Basically, a disadvantage based on the place of residency or nationality is considered as discrimination according to the EU Services Directive and is therefore forbidden, unless the trader can state objective reasons. Whether or not such reasons are sufficient has to be examined individually.
Samples in 79 shops showed that some traders didn't know if the commercial guarantee they are offering has geographic limitations or not (this makes 4/5 of the samples). Some of the traders explained that the commercial guarantee applies in the country where the product was purchased and in countries where representatives of the producer are situated.
Every European consumer is entitled to legal guarantee. It is valid for at least two years, like in Austria (note: For second hand goods, it is reduced to one year). Some European countries extended the duration period or adapted it to the usual "lifetime" of a product.
Legal guarantee claims have to be addressed to the trader. Within the first six months after purchase, the trader has to prove that the product wasn't defect at the time of purchase. After the six months, the burden of prove rests with the consumer. In Austria, there is no time-limit within which the defect has to be reported. All claims become invalid after two years.
The defect can be checked by an independent consultant, like a repair shop. The trader is not obliged to accept the expert's opinion. In case of a court proceeding, the judge decides whether or not the opinion is sufficient or if he wants to order a second one.
The consumer can request a repair or replacement of the goods within an appropriate period and free of charge. If this is not possible, the trader should refund or reduce the purchase price. If the product was repaired or replaced, a new guarantee period of two years begins.
A commercial guarantee is a voluntary service of the manufacturer, trader or third parties (like insurer or partners of the manufacturer). The consumer addresses his claims to those who offered him the guarantee.
In Austria, the commercial guarantee has to confirmed in written form or in another durable format. The following information has to be included: content of the commercial guarantee, all important details like duration and (geographic) coverage, information about the provider (contact details, address, company name etc.) as well as a reminder of the mandatory legal guarantee.
The design of the commercial guarantee, like duration, coverage, costs, is up to the provider. In Europe, the usual guarantee period are one to five years, in most cases it's two years and therefore the same as the legal guarantee.
Important note: Even if consumers make use of a commercial guarantee, the legal guarantee still applies. It is therefore highly recommended to carefully check whether the commercial guarantee represents added value. This may be the case, e.g. if the duration is more than two years or if the consumer gets a replacement device while the defect product is repaired.
If you receive defected goods after shopping abroad and the trader doesn't apply to the legal guarantee, please feel free to contact ECC Austria.