Gremlins in the first six months? It's the seller's problem – EU court

Sellers now have to assume responsibility in faulty tech disputes

A ruling by the European Court of Justice (ECJ) on Thursday puts the onus on tech companies to prove that a product was not faulty at time of sale if it malfunctions in the first six months.

In the words of the ECJ: “Any lack of conformity which becomes apparent within six months of the delivery of goods is, in principle, to be presumed to have existed at the time of delivery.”

The case that resulted in the ruling related to a second-hand car bought in May 2008 by Dutch national Froukje Faber that caught fire in September 2008 and was completely destroyed. By the time Faber told the seller’s garage notice that she was holding it liable in May 2009, the car had been scrapped.

Agustin Reyna, legal counsel for BEUC, the pan-European consumer rights organisation, said the ruling is “particularly relevant for IT products, because the consumer is generally in a very difficult position to prove the cause of the malfunctioning of a technical device”.

The ruling doesn’t change the consumer’s entitlements regarding remedies – such as whether the device should be replaced or repaired – but it does change the balance of proof between the parties.

“This decision is indeed very important because it clarifies who proves what during the first six months after purchase, in which there is a presumption in favour of the consumer,” said Reyna.

The protection that the provision confers on consumers “must be regarded as a provision of equal standing to a rule of public policy within the domestic legal system”, says the ECJ, but as Reyna points out, it remains to be seen how this will work in practice.

If there is a dispute over a malfunctioning device, it will still have to be examined by an expert, but this jurisprudence evens the odds a little for the customer. The ECJ found that the consumer must inform the seller of any gremlins lack of conformity in good time, and within any national legal time limits if they exist. ®

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