In these proceedings, the Supreme Court of Justice of the Republic of Austria dealt with the previous decisions by the ECJ regarding warranty claims for consumer goods.
The Plaintiff had bought several radiators from the Defendant and installed them himself. Only afterwards he noticed the defects. The Defendant offered to deliver new ones and collect the defective radiators, but she declined to remove them. Subsequently the Plaintiff removed and disposed the radiators himself. He then claimed compensation for the costs of removing and disposing the defective goods, as well as those costs that he would have to bear for the delivery and installation of new radiators.
In their decision the OGH cited the judgment of the ECJ (Judgment of 16 June 2011, C-65/09 und C-87/09, EU:C:2011:396 – Weber/Putz/Fliesen) concerning the interpretation of the Sale of Consumer Goods Directive (Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L 171, 7 July 1999, p. 12), which resulted regarding the costs of removal and installation of defective tiles. The basis for this request for a preliminary ruling by the ECJ was the German “tile-case” (BGH, judgment of 21 December 2011, VIII ZR 70/08 – Weber/Putz/Fliesen), which can also be found under the INspiRE publications.
The ECJ decided, that Article 3 (2), (3) of the Sale of Consumer Goods Directive must be interpreted in a way that the seller, who is strictly liable regarding these warranty claims, must undertake or bear the costs of removal and new installation.
The OGH followed this decision and concluded, that the Defendant generally owes the removal of the defective radiators and the installation of replacement radiators or she has to bear the corresponding costs.
As the Defendant only offered to deliver the new and collect the defective radiators, she is to be in default of her warranty obligations. Due to this, the Plaintiff could effectively terminate the contract, without circumventing the precedence of remedying the defects. As the Plaintiff removed the defective radiators himself, he could have claimed reimbursement for his expenses due to his rights for acting negotiorum gestio (as an agent without specific authorisation), but he had not substantiated this claim any further. Also, he could have claimed compensation for the fictive cost for installation, but the Plaintiff did not pursue this claim during the appeal proceedings.
In summary it can be said, that the Austrian warranty regulation (especially Section 932 of the Austrian General Civil Code, ABGB) is to be interpreted in conformity with the directive and under development of the law in such a way, that the seller of defective consumer goods has to either undertake or bear the costs of removal and new installation.
Unlike in Germany, there has not yet been an implementation of this ruling in the Austrian General Civil Code.

For the tile-case see: Fliesen-Case

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