With Directive (EU) 2019/771 of the European Parliament and of the Council on certain aspects concerning contracts for the sale of goods, hereinafter referred to as the “Directive,” European legislators have established additional requirements for traders in the sale of goods and harmonized consumer protection measures. These rules apply both to in-person sales and online sales of goods. According to Article 24 of the Directive, Member States are obligated to transpose it into their domestic legislation by January 1, 2022. Bulgarian legislation has transposed the directive through the Law on the Provision of Digital Content and Digital Services and for the Sale of Goods, which has been in force since January 1, 2022. With the entry into force of the Law on the Provision of Digital Content and Digital Services and for the Sale of Goods, several provisions of the Consumer Protection Act that applied until January 1, 2022, have been repealed.
First and foremost, it is important to clarify what the term “goods” exactly means. According to Article 2, subparagraph 2 of the Directive, “goods” means: a) all movable material goods; water, gas, and electricity are considered goods within the meaning of this Directive when offered for sale, in limited volume or a specific quantity; b) all movable material goods that include or are interconnected with digital content or a digital service in such a way that the lack of digital content or a digital service would prevent the goods from performing their functions (hereinafter referred to as “goods with digital elements”).
Requirements for Goods:
Article 5 of the Directive specifies a fundamental requirement for sellers of goods, and these goods must comply with individual conformity requirements, general conformity requirements, and requirements for the installation of goods.
A) Individual Conformity Requirements for Goods:
To comply with the sales contract, goods must have a description, type, quantity, and quality and possess functionality, compatibility, operational compatibility, and other characteristics required by the sales contract. Goods should be suitable for the specific purpose for which the consumer needs them, which the consumer has informed the seller of at the latest at the time of concluding the contract and to which the seller has agreed. Goods must be delivered with all accessories and instructions, including installation, as agreed in the sales contract, and must be updated according to the agreed terms in the sales contract. Of course, installation requirements concern goods that have such functionality.
B) General Conformity Requirements for Goods:
General conformity requirements for goods are applied in conjunction with those for individual requirements, and goods must:
- Be suitable for the purposes for which goods of the same kind are usually used;
- When applicable, be of high quality and comply with the description of the sample or model that the seller has made available to the consumer before concluding the contract;
- When applicable, be provided with the relevant accessories, including packaging, installation instructions, or other instructions;
- Be in the quantity and possess the qualities and other characteristics, including durability, functionality, compatibility, and safety, that are customary for goods of the same kind, and that the consumer can reasonably expect given the nature of the goods and any public statements made by the seller or on their behalf, or by other persons in the pre-contractual stage of the transaction, including the manufacturer, especially in advertising or labeling.
C) Improper Installation of Goods
Any non-conformity resulting from the improper installation of goods is considered a non-conformity of the goods if:
- The installation is part of the sales contract and is carried out by the seller or by a person whose actions the seller is responsible for; or
- The installation, which was supposed to be carried out by the consumer, is performed by the consumer, and the improper installation is due to deficiencies in the installation instructions provided by the seller or, in the case of goods with digital elements, provided by the seller or the provider of digital content or digital service.
Article 10 of the Directive regulates the liability of the seller. Paragraph 1 of the same article provides the general formulation of the seller’s liability, which is for any non-conformity that exists at the time the goods are delivered and which manifests within two years from that moment.
Article 11 introduces a rebuttable presumption of non-conformity of the goods. This presumption applies for a period of one year from the delivery of the goods. This means that if a non-conformity manifests within one year of delivery, it is presumed to have existed at the time of delivery of the goods, unless proven otherwise or if this presumption is incompatible with the nature of the goods or the nature of the non-conformity. In other words, the consumer does not need to prove the cause of the non-conformity, but it still needs to be established. The burden of proving that the non-conformity is insignificant lies with the seller, unless the seller proves otherwise.
Article 13 of the Directive specifies the legal remedies available to the consumer. The consumer may request the goods to be brought into conformity with the contract or to receive a proportionate price reduction or to terminate the contract. Bringing the goods into conformity is done at the consumer’s choice between repair and replacement, unless the chosen remedy is impossible or, compared to the other remedy, would lead to disproportionately high costs for the seller, taking into account all circumstances, including:
- The value the goods would have if there were no non-conformity;
- The significance of the non-conformity; and
- The possibility of using the other remedy without significant inconvenience to the consumer. The seller may refuse to bring the goods into conformity with the contract if repair or replacement is impossible or would lead to disproportionately high costs for them, taking into account all circumstances.
The same article specifies the conditions under which the consumer may request a proportionate reduction in the price or terminate the contract. An important feature is that the consumer does not have the right to terminate the contract if the non-conformity is minor. The burden of proving that the non-conformity is minor lies with the seller.
Article 14 specifies the conditions under which repair or replacement is carried out. Article 15 specifies the requirement for a proportionate reduction in the price, and Article 16 specifies the conditions under which the consumer may terminate the contract and demand a refund. Article 17 specifies the conditions for commercial guarantees for goods, which replace those in the Consumer Protection Act.
Article 18 regulates the seller’s right to recourse. This means that if the seller is liable to the consumer for non-conformity due to action or inaction, including failure to provide updates for goods with digital elements, by a person in the pre-contractual stage of the transaction, the seller has the right to use legal remedies against the responsible person or persons in the chain of transactions. In other words, traders can engage the liability of their supplier for the goods they sold to the consumer and which have shown non-conformity.
