For shopping abroad being pleasant it is useful to keep some thing in mind that may help if finding oneself in a conflict with a seller or a service provider.
Buying goods in EU
The EU internal market provides every consumer with wide options to buy goods in other Member States. For shopping abroad being pleasant it is useful to keep some thing in mind that may help if finding oneself in a conflict with a seller:
- Always keep a receipt as it is the document testifying the contractual relationships between you and the seller.
- Make sure that the selected commodity has all the functions and qualities to serve the needed purposes and intentions.
Prior to buying a commodity in a shop, the seller must provide information in a clear and well understandable manner (unless it unmistakably follows from the context) regarding:
- The main qualities of the goods or services.
- Identity of the seller.
- The final price of the commodities or the services including all the taxes as well as – in the particular case – all the extra delivery expenditure.
- In the particular case the conditions regarding payment, delivery, execution, term by which the seller undertakes to deliver the goods or deliver the services and the procedure the seller examines claims.
- Additionally, reminder regarding the consumer’s lawful rights in case a commodity has been purchased that does not correspond to the conditions, as well as information regarding whether and on what conditions a warranty repair and commercial guarantees are available.
- In case the contract has been concluded for an indefinite term or it has been prolonged automatically – the term of the contract or provisions for terminating the contract.
- In case a product of a digital content is being bought – information regarding the functionality as well as regarding compatibility of the content with the equipment and software (if any of this in the seller’s disposal).
In case after purchase an imperfection of the commodity has been detected that is not due to the consumer’s fault, the consumer is entitled to particular rights in accordance with the law and regulations of the European Union.
The normative acts of the European Union provide that a seller of a commodity is responsible for any incompliance of the commodity for a period of two years since the moment of purchase of the commodity.
Laws and regulations
The consumer’s rights when buying a non-conforming with the contract provisions commodity are established in accordance with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees.
The purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees. The Directive ensures a uniform minimum level of consumer protection and in each Member State the regulation may be more but not less favourable to the consumers’ rights that it is provided in the Directive.
Note! The provided in Directive 1999/44/EC minimum level of consumer protection refers to purchase of commodities that a consumer (a natural person who performs a purchase for purposes which are not related to his trade, business or profession) has bought from a seller (a natural or legal person who sells consumer goods in the course of his trade, business or profession).
In Latvia the legal provisions of the Directive has been transposed into the Consumer Rights Protection Law.
What is non-conforming with the contract good
A seller shall deliver to a consumer such goods that conform to the selling contract.
In accordance with Directive 1999/44/EC consumer goods are presumed to be in conformity with the contract if they:
- comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model;
- are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted;
- are fit for the purposes for which goods of the same type are normally used;
- show the quality and delivery which are normal in goods of the same type.
In case the purchased commodity does not conform to any of the aforesaid criterions, the consumer is entitled to address the seller and request to eliminate the inconformity of the commodity.
There shall be deemed not to be a lack of conformity if:
- at the time the contract was concluded, the consumer was aware of the lack of conformity;
- the lack of conformity has its origin in materials supplied by the consumer.
Remember! The seller shall be held liable where the lack of conformity becomes apparent within two years as from delivery of the goods
As Directive 1999/44/EC provided the minimum level of the legal regulation, the Member States in their laws and regulations may establish a period that is longer than two years. Although majority of the states have introduced a period of 2 years, in particular Member States this period is longer. Simultaneously, the Member States are allowed to provide that in order to benefit from his or her rights, the consumer must inform the seller of the lack of conformity within a period of two months from the date on which he detected such lack of conformity.
More information regarding the differences in the legislation of the Member States is available at the ECC-NET joint project ‘Commercial warranties – are they worth the money?’
How to act in case a consumer good nonconforming with the contract has been bought
In accordance with Directive 1999/44/EC the seller shall be held liable where the lack of conformity becomes apparent within two years as from delivery of the goods. In case after purchase you have found that the commodity does not conform to the contract, within this period of two years you have rights to address the seller and request that the inconformity be eliminated.
However, the Member States are allowed to provide that in order to benefit from his or her rights, the consumer must inform the seller of the lack of conformity within a period of two months from the date on which he detected such lack of conformity. Such a restriction has been introduced in particular Member States, including Latvia.
Once you have detected inconformity of the goods, notify the seller of the goods as soon as possible!
In Latvia, according to the Consumer Rights Protection Law, a consumer is entitled to submit a claim to the trader or service provider in respect of the non-conformity of goods or service with the provisions of a contract:
- within two years of the day of purchase of the goods or receipt of the services.
- within two months from the day when he or she has discovered the non-conformity of the goods or service with the provisions of a contract.
According to the Consumer Rights Protection Law any movable tangible property shall be considered as the goods, and also a movable tangible property produced as a result of the provision of a service or the qualities thereof. Whereas in the law opinion a service is an activity as a result of which movable tangible property or its properties are improved or altered.
- Consumer’s claims
A consumer may state such claims to a seller:
- Free of charge repair or replacement of the commodity (unless it is not practicable or disproportionate).
- Reduction of the price or return of the money but only in cases when:
- The seller has not perform the remedies or replacement within a reasonable term,
- The said actions have been executed by causing significant inconveniences to the consumer.
When reducing the price or returning the money, the parties may take into account the depreciation or the benefit the consumer has gained while using the commodity.
Remember that a consumer is not entitled to return of the money in case the nonconformity of the goods has been insignificant.
Proving goods non-conformity
In a dispute with a seller regarding a goods non-conformity with the contract aspect of proof is essential.
In order to improve the condition on basis of which a consumer may entertain the provided in Directive 1999/44/EC rights, the burden of proof has been amended in favour of a consumer as in comparison with sellers, consumers are disadvantaged regarding the information that is available concerning the particular commodity and the condition in which it was delivered. In case of any lack of conformity becoming apparent within six months of delivery of the goods the seller shall be presumed responsible. During these 6 months the burden of proof is transferred to the seller who in order to avoid the responsibility must prove that at the moment of delivery the inconformity did not exist or must refute the consumer’s claims in any other way.
In accordance with the Consumer Rights Protection Law if non-conformity of goods with the provisions of a contract is discovered within 6 months after the purchase of goods, it shall be considered that it existed on the day when the goods were purchased, except the case when such assumption is in contradiction with the nature of goods or type of non-conformity. Within the period of these 6 months it is the duty of the seller (not of the consumer) to prove that the goods conform to the contract provisions.
Within the rest period of 2 year lawful rights (legal warranty) it is the obligation to prove that the goods conform to the contract provisions.
Regardless the lawful rights of a consumer, when a nonconforming with the contract commodity has been bought (‘legal warranty’), a seller or a manufacturer may offer to a consumer also a voluntary commercial guarantee. By commercial guarantee the seller or manufacturer undertakes addition commitments to the consumer that are not provided in any normative acts, to perform particular actions with the commodity in case it does not conform to the stated in the warranty or the respective advertisement specifications. Existence of any commercial guarantee may not affect the lawful rights of a consumer.