MODERNISING THE LEGAL FRAMEWORK FOR THE CROSS-BORDER SALE OF GOODS IN THE EU: A COMPARATIVE ANALYSIS OF DIRECTIVES 1999/44/EC AND 2019/771

Abstract

Introduction. The cross-border sale of goods within the European Union has long been subject to the minimum harmonisation framework established by Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees. For over two decades, this instrument served as the foundational reference for EU consumer sales law; however, its minimum harmonisation approach generated regulatory fragmentation, legal uncertainty, and an inadequate response to the emergence of goods with embedded digital elements.

Summary of the main results of the study. This article undertakes a comparative legal analysis of Directive 1999/44/EC and its successor, Directive (EU) 2019/771, which became fully applicable on 1 January 2022. The analysis identifies the principal structural and substantive differences between the two instruments, focusing on the shift from minimum to targeted full harmonisation, the introduction of an explicit dual conformity standard combining subjective and objective elements, the codification of a durability criterion, the extension of the reversed burden of proof from six months to one year, and the novel treatment of goods with digital elements. The article examines the significant body of Court of Justice of the European Union (CJEU) case law interpreting Directive 1999/44/EC -including the landmark judgments in Quelle AG, Weber and Putz, Duarte Hueros and Faber -and traces the influence of these decisions on the legislative drafting of Directive 2019/771. The cross-border implications of the reform are assessed, with particular attention to the reduction of compliance costs for traders operating across Member States, the strengthening of consumer rights in distance and online sales, and the interface between Directive 2019/771 and Directive (EU) 2019/770 on contracts for the supply of digital content and digital services.

Conclusion. The article concludes that Directive 2019/771 represents a substantive improvement over its predecessor and a significant step towards the creation of a genuine digital internal market. However, the retained Member State options, the complexity of regulating goods with digital elements, and the unresolved interface with the platform economy continue to pose challenges that will require further legislative and judicial clarification.