Thousands of online retailers have burned their fingers and received annoying warnings over the annoying issue of warranty advertising. The European Court of Justice recently decided that the term guarantee relevant to the enormous advertising requirements should be interpreted broadly and that a “satisfaction guarantee” should also be viewed as a guarantee in the legal sense. This has been very controversial so far and thousands of retailers are now at risk of being legally vulnerable to advertising.
What is it about?
Anyone who advertises with a guarantee as an entrepreneur must ensure that they fulfill the (significant) legal information requirements directly within the scope of this guarantee advertising.
In particular, the warranty conditions, the “small print” of the warranty service, must be made available to the consumer as part of warranty advertising (i.e. already online).
Advertising with a guarantee is therefore only possible certain conditions permitted.
If you advertise your goods to consumers with a guarantee (mentioning the word “guarantee” in the product description, for example, is sufficient), then you must ensure that, among other things
• point out the consumer’s legal rights in the event of defects within the meaning of Sections 437 ff. BGB;
• also point out that the use of these rights is free of charge and that these rights are not restricted by the guarantee offered;
• and state the name and address of the guarantor;
• and mention the duration and geographical scope of the guarantee protection;
• and ensure that the advertised warranty service can be clearly assigned to the corresponding goods (i.e. it does not give the impression that goods that are not covered at all are covered by the warranty) and
• as well as inform you about the content and provisions of the guarantee as well as the procedure to be followed by the consumer to claim the guarantee service (in the sense of “guarantee conditions”).
Guarantee advertising that is just a slogan, and where you do not fulfill one of the aforementioned information obligations, means there is a real risk of a warning.
Are you looking for a sample for legally compliant, warning-proof advertising with a manufacturer or dealer guarantee?
The IT law firm provides its update service clients with appropriate samples for legally and warning-proof advertising with a manufacturer or dealer guarantee free of charge.
Would you like to become a new client of the IT law firm?
Simply book one of the protection packages and, in addition to the legal texts, you will also receive prompt access to the samples for legally compliant guarantee advertising.
Anyone who does not meet these requirements, which are stipulated in Section 479 Paragraph 1 Sentence 2 of the German Civil Code (BGB), i.e. only advertises in a slogan-like manner, for example exclusively with a statement such as “5-year manufacturer’s guarantee”, is offering warnings a clear opportunity.
This is recognized for “classic” quality guarantees, which refer to the freedom from defects in the goods offered, which probably accounts for the majority of all guarantee promises.
However, many retailers also advertise guarantees whose promises cannot be objectively “measured”.
A typical case of this is advertising with a “satisfaction guarantee”: This is clearly not a guarantee of quality, because the object of the guarantee promise is not (at least not primarily) an objectively detectable freedom from defects in the purchased item. Rather, the guarantee promise is primarily aimed at the “satisfaction” of the buyer, i.e. a highly subjective attitude on the part of the buyer.
Whether the advertising of such “subjective” guarantee promises is also subject to the strict requirements of advertising with guarantees within the meaning of Section 479 Paragraph 1 Sentence 2 of the German Civil Code (BGB) has so far been controversial.
The decision of the ECJ
A retailer who sold climbing clothing was warned by the later plaintiff in 2018 because the T-shirts sold had labels that advertised a lifetime satisfaction guarantee without providing further information about the contents of the guarantee or other guarantee advertising to provide necessary information. These are the requirements for a correct guarantee declaration in the sense of §§ 443 and 479 BGB violated.
Since the warning was unsuccessful, a lawsuit was filed.
The LG Munich I (judgment of February 10, 2020, Ref.: 4 HKO 8418/19) had dismissed the lawsuit.
The Munich Higher Regional Court (judgment of January 14, 2021, Ref.: 29 U 1203/20), on the other hand, had sentenced the defendant to cease and desist because information about the guarantee on the labels did not meet the requirements for a guarantee declaration.
The defendant appealed against this decision to the Federal Court of Justice. The BGH had doubts as to whether Sections 443 and 479 of the German Civil Code (BGB) even apply to the advertised “satisfaction guarantee”, suspended the proceedings and submitted the following two questions to the ECJ for a preliminary ruling:
1. May a requirement other than freedom from defects within the meaning of Article 2 No. 14 of Directive 2011/83/EU and another requirement not related to conformity within the meaning of Article 2 No. 12 of Directive (EU) 2019 /771 exist if the guarantor’s obligation is linked to personal circumstances of the consumer, in particular to his subjective attitude towards the purchased item (here: the satisfaction with the purchased item, which is at the discretion of the consumer), without these personal circumstances being linked to the condition or must be related to the characteristics of the purchased item?
2. In the event that question 1 is answered in the affirmative:
Must the absence of requirements based on personal circumstances of the consumer (here: his satisfaction with the purchased goods) be identifiable on the basis of objective circumstances?
With its ruling of September 28, 2023 (ref.: C-133/22), the ECJ now decided that the term “commercial guarantee”, which is contained in the Consumer Rights Directive (Directive 2011/83/EU of the European Parliament and of the Council of October 25, 2011) and in the Purchase of Goods Directive (Directive (EU) 2019/771 of the European Parliament and of the Council of May 20, 2019) must be interpreted broadly in the interest of a high level of consumer protection and a subjective guarantee such as the one in question here “Satisfaction Guarantee” is included.
Furthermore, the customer’s lack of satisfaction does not have to and cannot be objectively determined. In this respect, the consumer’s mere assertion is sufficient to claim the guarantee.
The ECJ thus established two important things:
On the one hand, an attitude that cannot be objectively verified, in this case customer satisfaction, can and may be the subject of a promised guarantee.
On the other hand (and much more important for practice), advertising with a “satisfaction guarantee” represents advertising with a “commercial guarantee”, so that the high hurdles of (normal) guarantee advertising must be met when advertising a “satisfaction guarantee”.
As a result, advertising with a “satisfaction guarantee” should not be treated any differently than advertising with a classic quality guarantee!
The BGH must now decide on how to proceed in the event of a dispute based on the criteria set by the ECJ.
Conclusion
Entrepreneurs should see the ECJ decision as a warning that “subjective” guarantees can also trigger the information obligations that apply to “normal” guarantee advertising, such as advertising with a classic guarantee of quality.
The problem is that advertisements with subjective guarantees such as a “satisfaction guarantee” or a “feel-good guarantee” are in practice often just empty phrases, precisely because they are highly subjective and featureless.
However, due to the ECJ’s decision, all advertisers are now forced to provide “hard” and “tangible” facts about the promised guarantee, in the form of guarantee conditions, which must be presented directly in the guarantee advertising (in addition to the other mandatory information).
The broad interpretation of the term guarantee by the ECJ will not stop at the “satisfaction guarantee”. Rather, almost all “common” guarantees, regardless of whether they are based on subjective and/or objective criteria, are likely to be affected.
So does advertising with one
Feel-good guaranteeSuccess guaranteeFit guaranteePunctuality guaranteeExchange guaranteeSpare parts guarantee.
Anyone who has so far only used such guarantees in empty terms without any real substance behind them should consider stopping this type of advertising completely. What really lies behind the guarantee should be made clear in the guarantee conditions at the latest.
All other advertisers must think about how they can describe their guarantee service in appropriate words in the corresponding guarantee conditions.
Do you want to stay legally up-to-date in e-commerce and also “free of warnings”?
We support you in achieving this goal.
Secure your business with ours protection packages.
Tip: Do you have any questions about the article? Please feel free to discuss this with us in the
Entrepreneur group of the IT law firm on Facebook.