In Case C-179/21 Victorinox, the ECJ recently considered whether a trader’s (Absoluts bikes and more GmbH & Co) Amazon page, which only gave consumers access to a manufacturer’s guarantee via a “further technical information” link, satisfied the requirements under the Consumer Rights Directive. The Directive provides that traders must give consumers pre-contract information, in a clear and comprehensible manner, about the existence and conditions of commercial guarantees.
The ECJ confirmed that a trader must always provide pre-contract information about its own guarantees but can effectively be silent about any manufacturer guarantees unless the trader makes such a guarantee a “central or decisive element” of its offer by drawing attention to it in the sales or advertising process. The ECJ noted that requiring a trader to always provide information about a manufacturer’s guarantee would be disproportionate to the need for consumer protection, given the work involved in collecting and updating information on manufacturers' guarantees, which would have a particularly negative impact on smaller businesses.
What this means
The decision from Case C-179/21 Victorinox, as post-Brexit case law, is not binding on UK courts, although courts in the UK may have regard to it.
Therefore, if your business is offering a product for sale to consumers, you should determine whether a manufacturer’s guarantee is a “central or decisive” element of the offer. To determine this traders should consider:
- how the goods are offered in terms of content and layout
- how prominently a manufacturer guarantee is mentioned
- how likely it is that a reasonably well informed, observant and circumspect consumer would be confused about who was offering the guarantee and how they could exercise their rights under it
- whether the manufacturer’s guarantee is only mentioned incidentally and not for commercial purposes – if so, it is less likely to be a “central or decisive” element of the offer
If a manufacturer’s guarantee is a “central or decisive” element of the offer, you will need to be careful to ensure consumers are given, in a clear and comprehensible manner, information about that guarantee at the pre-contract stage of any sale.