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Advocate General's opinion issued on consumers' obligations to return defective goods for repair or replacement

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In the case of Christian Fülla v Toolport GmbH (Case C-52/18) EU:C:2019:22 (15 January 2019) Advocate General Wahl has issued an opinion concerning the return of defective goods for repair, under the Sales and Guarantees Directive (1999/44/EC) (Directive), as implemented in the UK by the Consumer Rights Act 2015. In particular, the Advocate General had to consider the burden on the consumers to foot the cost of returns at their own expense before being reimbursed.

Pursuant to the Directive, defective goods must be brought into conformity with the contract "free of charge". Specific reference is made within the Directive to the costs of postage, labour and materials in relation to returns. In the opinion of the Advocate General, this does not necessarily mean that the seller is obliged to make an advance payment to the consumer to cover the costs of the return. Notwithstanding, consumers should not have to bear the costs of the return and await subsequent reimbursement where the costs of shipping are an onerous financial burden which might deter the consumer from asserting their rights for a repair or replacement. The Advocate General was of the opinion that a case by case approach should be adopted with matters such as the shipping costs, the value of the goods and the consumer's means of redress if the seller fails to reimburse them subsequently being relevant factors.

The Advocate General also provided guidance that where a consumer wants to exercise their right to rescind a contract due to a seller failing to repair or replace defective goods within a reasonable time they must have: 1) inform the seller the goods are defective (demonstrating the defective but not needing identify the cause of the defective); 2) indicate whether they want a repair or replacement; and 3) make the goods available to the seller. It is the seller, however, who should suggest how the goods be made available (subject to doing so within a reasonable period of time).

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