Professional sellers must offer consumers (buyers) a 2-year guarantee that the products sold are in conformity with the sales contract. The guarantee must also cover products against hidden defects.
Professional sellers may also offer consumers extended commercial guarantees.
Guarantees of conformity must be offered only by professional sellers – i.e. private or public individuals or corporate entities acting in the course of their commercial, industrial, artisanal or freelance professional activities. For example, private individuals who sell their car are not considered professionals because of that sale.
A guarantee of conformity must be given only to consumers – i.e. individuals acting outside of their own professional activities. This means that a guarantee of conformity does not have to be given to a professional, company or association.
Who is concerned
Any individual buying movable tangible property (cars, appliances, shoes, furniture, etc.) from a seller must receive a guarantee of conformity.
A guarantee of conformity is not required for:
- individuals selling a product in a private capacity (such as their car);
- professionals who sell products to other professionals (B2B);
- the sale of intangible movable assets (such as shares, financial products or insurance), immovable assets (such as a house or flat or a plot of land) and auctions and forced sales;
- in principle, the supply of electricity, water or gas.
However, a guarantee must be given if the quantity or volume of electricity, water or gas can be determined in advance. For example, a guarantee does not have to be given for mains natural gas supply by a local authority. On the other side, one has to be given for the purchase of bottled gas.
Before selling a product, professionals must inform the consumer of its essential characteristics.
That information must be clear and intelligible, even in advertisements or a commercial guarantee statement, even if issued by a different professional in the distribution chain.
Duration of the guarantee of conformity
The professional must guarantee the conformity of the product for 2 years.
However, buyers are responsible for proving (by any means, such as in writing, witness testimony or expert opinion) that a delivered item was defective at the time of delivery.
This is not the case for the first 6 months after delivery: during that period, the consumer does not need to prove that the item was defective at the time of delivery. It will be assumed that the item was defective at the time of delivery.
However, in the case of second-hand products (except cars less than one year old), the professional and the consumer may agree in writing that the duration of the guarantee may be less than 2 years (but not less than one year).
The shorter guarantee period can be specified in the general terms and conditions. But the consumer has to be informed of this case.
Deadlines of withdrawal for the consumer
The consumer must notify a lack of conformity within 2 years of delivery.
If a defect appears 2 years and one day after delivery, the object is no longer under guarantee.
Deadlines for repair or exchange by the professional
In theory, consumers have four options:
- they may ask the professional to repair the item; or
- they may ask that the item be exchanged for an identical item that conforms with the order; or
- they may keep the item but ask for a discount; or
- they may return the item and request a full refund of the price.
Repairs or exchanges must take place within one month from when the consumer requested the repair or exchange from the professional, except where this operation is either impossible or constitutes an excessive burden.
Once the 1-month deadline has passed, the consumer may decide to:
- return the item and ask to be fully reimbursed; or
- keep the item and request a partial reimbursement.
Deadline for filing a lawsuit
If the professional and the consumer are unable to settle their dispute amicably, the consumer may file a legal complaint against the professional within 2 years of notification of the problem.
The deadline is suspended:
- in case of ongoing negotiations between the professional and the consumer; or
- if the consumer refers the case to a court (before a summary judge); or
- for any court-ordered investigation into the defect, such as an expert appraisal.
A new one-year deadline for bringing the case to court begins running if the negotiations are halted by the professional or if the investigation is closed.
Exception: at the end of the 2-year deadline for bringing the case to court, if the consumer has not yet paid for the item they reported faulty, if the professional continues to demand payment, the consumer may still request a discount or payment for damages caused.
How to proceed
Products in conformity with the sales contract
To be in conformity with the sales contract at the time of delivery, products must:
- meet the characteristics stated in the sales contract, invoice, purchase order, product information sheet, etc.;
- match the description and have the qualities described by the professional;
- be usable:
- in the usual way that the item should be used;
- or in accordance with the consumer's wishes, provided the consumer has informed the professional of the specific use they intend to make of it and the professional has not expressed any reservations;
- have the qualities a consumer can reasonably expect from such an item based on the statements made on the label or in advertising (in a leaflet, on television, online, in a sample, etc.), including those made by the manufacturer, the owner of the trademark, etc. (unless the seller can prove that they were not aware of the advertising).
Professionals are also responsible for lack of conformity resulting from:
- assembly instructions;
- installation if they did it themselves or it was done by a subcontractor.
However, they are not responsible for defects affecting materials provided by the consumer (such as custom-made products from materials provided by the buyer).
It is advisable to write down all the characteristics of the object, including potential reservations made by the professional against a special use that the buyer intends to make of the product.
Products sold with defects
No clause can restrict or exclude the responsibility of the professional for a lack of conformity.
However, if the consumer knowingly purchases a defective product, the professional cannot be held liable for said defect.
In this case, the defect must be described in the sales contract signed by the buyer (it is not sufficient to mention that the product has a defect).
Lack of conformity within 6 months of delivery
If a defect manifests itself within 6 months of the product's delivery, the product is under guarantee, as it is presumed to have been defective at the time of delivery. All the buyer has to do is report the defect to the professional (by telephone, fax, e-mail, registered letter, etc.).
It is then the professional's responsibility to prove that any defects occurred after the delivery, for such reasons as misuse by the consumer (e.g. a mobile phone exposed to humidity by the buyer or a camera damaged by being dropped).
Defects occurring between the 7th and 24thmonth after delivery
If a defect appears after the first 6 months following delivery of the object (for the remaining 18 months of the guarantee), the product is under guarantee if the defect existed at the time of delivery.
In this case, the buyer must prove that the defect already existed at the time of delivery. In general, proof is provided through an expert assessment carried out at the buyer's expense.
Extent of the guarantee of conformity
If the products are not in conformity with the sales contract at the time of delivery, the buyer can:
- return the item and ask to be fully reimbursed, unless:
- the professional repairs or exchanges it;
- or the defect is minor;
- keep the item but ask for a discount unless the professional repairs or exchanges the object;
- request that the item be repaired or exchanged (the consumer has the choice as long as it does not constitute an excessive burden for the professional), unless:
- it is impossible to repair or exchange it; or
- if it involves excessively high costs for the professional.
The consumer can also ask the professional for compensation if they prove that they suffered actual damage due to the defect.
Optional commercial guarantee
All professionals are free to grant their consumers a commercial guarantee that is more favourable to the consumer than the legal guarantee (guarantee of conformity).
The commercial guarantee is an extension of the guarantee (for which an additional amount may be charged) beyond the mandatory 2 years which exempts the consumer from having to prove the existence of the defect at the time of delivery in order to obtain a repair, refund, replacement, etc.
This guarantee must be given to the consumer on paper (or any other durable medium) in German or French (at the consumer's choice). It must clearly state:
- its content (freely determined by the professional);
- the essential elements for its implementation, including:
- its duration;
- its geographic scope;
- and the address of the person granting the guarantee;
- the duration of the legal guarantee (i.e. 2 years);
- and the fact that the guarantee of conformity and the guarantee against hidden defects still apply.
Consumers who feel they have been wronged by a professional who has not complied with a guarantee may turn to:
- the Luxembourg Consumer Association (Union Luxembourgeoise des consommateurs - ULC): the ULC will inform, advise and defend consumers in case of an individual problem in Luxembourg;
- the Luxembourg economic interest group, the European Consumer Centre (Centre européen des consommateurs - CEC): informs consumers and defends their interests if they have problems with a professional in another Member State of the European Union.
If the collective interests of consumers are at stake, an action for injunction may be brought before a court against a professional at the request of:
- an approved consumer protection organisation; or
- the Ministry in charge of consumer protection, currently the Ministry of Consumer Protection.