The European Court of Justice recently ruled that if a product turns out not to conform with the consumer contract within six months of delivery, lack of conformity is presumed to have existed at the time of delivery, unless proven otherwise. A product lacks conformity with the consumer contract when it does not have the agreed qualities or is not fit for the expected purpose. Businesses dealing with the sale of products to consumers should realise that, as a general rule, the seller must establish that the lack of conformity is due to an act or omission which took place after delivery of the product.

This case dealt with the sale of a car that caught fire four weeks after purchase. The owner of the car took the seller to court, and the case was eventually brought before the Arnhem-Leeuwarden Court of Appeal. The court of appeal referred a number of questions to the ECJ for a preliminary ruling.

The first question was: should the national court examine of its own motion whether the car’s owner was a consumer as outlined in Directive 1999/44 on the sale of consumer goods and associated guarantees. The second question submitted to the ECJ was: should the national court also examine of its own motion the directive’s provision that a lack of conformity is in principle presumed to have existed at the time of delivery if it occurs within six months of delivery. The ECJ gave an affirmative answer to both questions.

The ECJ was also asked about the relationship between the directive and a national rule where there is a dispute between consumer and seller. Under Dutch law, the consumer has to prove that the seller was informed within two months after detecting the lack of conformity. Since this national rule is not part of the directive, the question was whether the rule was allowed. The ECJ pointed out that the national rule is not in conflict with the directive, as the directive allows member states to require that a consumer inform the seller within two months. This means that the rule is allowed in the Netherlands, but the ECJ stated that the consumer is only required to prove that the product is not in conformity with the contract. The consumer does not have to explain the exact cause of the lack of conformity.

Finally, the Court explained how the burden of proof is allocated. The consumer must prove that the product is not in conformity with the contract. A product is not in conformity with the contract if it lacks the agreed qualities or is not fit for the expected purpose. The consumer does not have to prove the cause of the lack of conformity or that the lack of conformity can be attributed to the seller. But the consumer does have to prove that the lack of conformity appeared within six months after delivery. If the consumer proves this, the lack of conformity is presumed to have existed at the time of delivery. It is then up the seller to provide evidence against this. Businesses dealing with the sale of products to consumers should realise that it is for them to provide proof against the statement that the lack of conformity existed when the products were delivered. They must demonstrate that the lack of conformity was caused by an act or omission taking place after delivery.