French Supreme Ct rules that Art. 39 CISG applies to redress under 1999 EU Consumer Sales Directive

In its decision in the matter Ceramiche Marca Corona v. Bois & Matériaux of 3 February 2021, the French Supreme Court (Cour de cassation) ruled on the relationship between the Sales Convention, notably its cut-off rule in Art. 39(2) CISG, and the final seller's right of redress under the 1999 EU Consumer Sales Directive:

The dispute, which reaches the French Supreme Court for the second time (see its earlier decision of 2 November 2016, CISG-online 2804), arose out of a sale of floor tiles by the tiles' producer, the Italian company Ceramiche Marca Corona, to a French wholesaler of construction materials, now doing business under the name Bois & Matériaux. Bois & Matériaux sold some of the tiles to a French couple L. When the tiles turned out to be defective, the L.s sued Bois & Matériaux, who in turn sought redress against the tiles' manufacturer and CISG seller Ceramiche.

The problem: By the time Bois & Matériaux initiated proceedings against Ceramiche, the two-year cut-off period of Art. 39(2) CISG had already passed.

Decision by the Court of Appeal Poitiers

The Court of Appeal Poitiers nevertheless granted Bois & Matériaux's claim against Ceramiche by holding that Bois & Matériaux was exercising its right of redress that forms part of the domestic laws of all EU States since the 1999 Consumer Sales Directive.

Art. 4 of the 1999 EU Consumer Sales Directive ('Right of redress') reads:

Where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller shall be entitled to pursue remedies against the person or persons liable in the contractual chain. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and conditions of exercise, shall be determined by national law.

(A similar (although not identical) provision can now be found in Art. 18 of Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC, the successor directive to the 1999 Consumer Sales Directive.)

In addressing the relationship between the EU law-induced right of redress and Art. 39(2) CISG, the Court of Appeal apparently ruled that Bois & Matériaux was not exercising its rights as a buyer under the CISG, but its right of redress, and that the latter was not affected by Art. 39(2) CISG.

Decision by the French Supreme Court

In its present decision, the French Supreme Court held that by not applying Arts. 39 and 40 CISG, the Court of Appeal had violated these CISG provisions. In accordance with the usual, brief style of its decisions, the Supreme Court did not give any reasons for its interpretation, but merely reversed the appellate decision and remanded the matter to a yet different Court of Appeal (in Bourges).

In essence, the Supreme Court's decision indicates that the right of redress under the 1999 EU Consumer Sales Directive does not "trump" Art. 39(2) CISG, but that the CISG's cut-off period also affects the redress of CISG buyers that are "final sellers" in the sense of the Directive. This result is arguably supported by the plain reading of the Directive's redress provision, under which the "conditions of exercise" of each redress "shall be determined by national law" - in this respect, the applicable "national law" can be (and often will be) the CISG.