Joasia Luzak, A Storm in a Teacup? On Consumers’ Remedies for Non-Conforming Goods after Weber and Putz (April 7, 2015). European Review of Private Law, 2015, Forthcoming; Centre for the Study of European Contract Law Working Paper Series No. 2015-04; Amsterdam Law School Research Paper No. 2015-10. Available at SSRN
The Court of Justice of the European Union’s role is to interpret provisions of European law in a way that promotes the European legislator’s intentions. The clarity introduced by the CJEU is supposed to contribute to further harmonization of the Member States’ legal systems. When the Court’s judgment raises, however, as many questions as it answers, like in the Weber and Putz case regarding the assignment of liability for the costs that need to be made when a non-conforming good is replaced, the duty of consistent interpretation resting on national courts may be hard to fulfill. This article examines the implementation of the Weber and Putz judgment by German and Dutch courts, showing us differences in the national approaches to use the test provided by the Court of Justice of the European Union, pursuant to which the national judge can decide how to divide among consumers and sellers the costs for the removal of the already installed, non-conforming goods and for the installation of the new, conforming goods. Moreover, the conducted analysis presents potential unexpected effects of the Court’s ruling. Due to a lack of full harmonization of European consumer sales law, as well as damages having been left to national laws to regulate, in some Member States, for example in the Netherlands, consumers may be significantly better off if they chose the option-out created in the Weber and Putz case: to terminate the contract and claim damages instead of trying to give sellers another chance to perform.