Manufacturer’s guarantee – what must trader inform about in the internet offer?

In the judgment of 5th May 2022, case number C-179/21, the CJEU took the position on the scope of information about the goods which should be included in an offer by a seller selling though internet trading platforms such as Amazon.

The CJEU underlined that if the subject of the contractual relationship relates to goods manufactured by a person other than the trader, the obligation to provide information must encompass all the essential information relating to that goods concerned, so that the consumer may decide whether he or she wishes to be contractually bound to the trader.

The dispute in this particular case was the obligation to provide information on the manufacturer’s guarantee. In principle, all guarantees inherently linked to the goods, which includes the commercial guarantee offered by the manufacturer are main characteristics of the goods.

 However, it  does not mean that in each case information on the manufacturer’s guarantee must be in the description of the goods. It would be a disproportionate burden for the trader.

As part of the compromise to protect the consumer, the CJEU stated that the trader is required to inform the consumer before entering into a contractual relationship about the manufacturer’s commercial guarantee only where the consumer has a legitimate interest in obtaining information whether to enter into a contractual relationship with the trader. Such a legitimate interest is established where the trader makes the commercial guarantee granted by the manufacturer a central or decisive element of its offer especially if it is used for sales and to improve the competitiveness and attractiveness of its offer in comparison with its competitors’ offers.

While assessing the above issue, the following elements should be taken into consideration:

  • content and general layout of the offer with regards to the goods concerned;
  • the importance of referring to the manufacturer’s commercial guarantee for sales or advertising purposes
  • the space occupied by that reference in the offer;
  • the likelihood of mistake or confusion which that reference might trigger in the mind of the average consumer as to different rights which he or she may exercise under a guarantee or the real identity of the guarantor;
  • explanations relating to other guarantees covering the goods concerned;
  • any other element capable of establishing an objective need to protect the consumer.

– judgment of the CJEU of 5th May 2022, case C-179/21 “Victorinox”