DE: Preliminary ruling: Legal impact of satisfaction guarantees

Mar 25, 2022 Benn-Ibler Rechtsanwälte

The German Federal Court of Justice (Bundesgerichtshof, BGH) has asked the Court of Justice of the European Union (ECJ) to clarify, in the context of a preliminary ruling procedure, the question whether a guarantee exists when a trader grants a right of return that depends on customer satisfaction.

The plaintiff sells goods for sports and fitness needs in her online shop. The defendant sells sports and fitness products through retail and online retailers. She attached hang tags to her T-shirts on which the text: "L. Warranty" was printed. The online shop retailer now sued for an injunction under competition law against the use of these hang tags with warranty statements. She claimed that the information did not meet the legal requirements for a warranty statement.

Whether the defendant has to comply with the legal requirements for warranties depends on the question to be answered whether the imprint on the hang tags can constitute a warranty according to Section 443 para 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The BGH has no doubt that, if Sec. 443 para 1 BGB is interpreted in conformity with the directive, the consumer's satisfaction with the purchased product does not constitute a condition of the object of purchase that can be guaranteed. All factors that are inherent in the object itself as well as all relationships of the object to the business environment that have an influence on its value according to the perception of the market are to be regarded as the condition of an object. With the declaration on the hang tag, the company has committed itself to the consumer to take back the manufactured T-shirt in case of customer dissatisfaction. According to the aforementioned criteria, the buyer's satisfaction with the purchased product does not constitute a condition of the purchased item that relates to freedom from defects. Satisfaction may be linked to the condition or characteristics of the purchased item. According to the "L. Warranty", however, the item can also be returned in this case for subjective, personal reasons.

According to the BGH, it has to be clarified to what extent the consumer's satisfaction does not constitute a requirement under Art 2 no. 12 of Directive (EU) 2019/771 and, as a result, a warranty can then exist. 

BGH, I ZR 38/21 (10.02.2022)