The European Court of Justice (ECJ) recently ruled that suppliers of defective consumer products cannot request that consumers pay for the use of such products pending their return or replacement (Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände (Case C-404/06)).

In August 2002, Quelle, a mail order company, delivered a ‘stove-set’ to a German consumer. In early 2004, the consumer discovered irreparable problems with the appliance and returned it to Quelle. Although the company agreed to replace the appliance, it also demanded that the consumer pay approximately €70 by way of compensation for the benefit she had obtained from use of the defective appliance pending its return. German contract law entitles sellers of defective products to demand such payments. A German consumers’ association challenged the compatibility of this rule with the provisions of Directive 1999/44/EC on the sale of consumer goods and associated guarantees, which gives consumers the right to require a seller to repair or replace non-conforming goods ‘free of charge’, and the German court referred this question to the ECJ.

In its judgment, the ECJ held that the provisions of Directive 1999/44/EC precluded national law from placing an obligation on consumers to compensate sellers of goods that are not in conformity. Sellers could not make any financial claim in connection with the performance of their obligation to bring into conformity goods to which a consumer contract relates. The ECJ also dismissed the German government’s assertion that requiring the replacement of the faulty goods without compensation for their use amounted to unjust enrichment of the consumer.