Joined Cases C-65/09 & C-87/09, Gebr. Weber GMBH v. Jürgen Wittmer and Ingrid Putz v. Medianess Electronics GMBH, Judgment of the Court of Justice (First Chamber) of 16 June 2011 - Case Note

Posted: 7 Nov 2012

See all articles by Angus Johnston

Angus Johnston

University of Oxford - Faculty of Law

Hannes Unberath

University of Bayreuth (Deceased)

Date Written: April 6, 2012


Annotation of the Weber and Medianess judgment of the Court of Justice, concerning the application of the EU's Consumer Sales and Guarantees Directive 1999/44/EC, and specifically the remedies available to the buyer where the goods delivered were not in conformity with the sale contract.

In Weber, Mr Wittmer, the consumer, had bought floor tiles and had also had them laid in his house; in Medianess, a dishwasher was delivered to the door of Ms Putz’s house and was subsequently installed. In both cases, the dealer had not undertaken to install the goods but merely to hand over goods of a specified quality at his own place of business or the consumer’s home, respectively, while the consumer was to decide if, how and when he would make use of the goods. In the cases at hand, the goods were used as was to be expected, namely by incorporating them into other objects: the floor of the house and the kitchen, respectively. Subsequent to the installation of the goods, in both cases the buyer discovered faults in those goods. It was not in dispute that the goods were defective. It was also common ground that, since repair was impossible the seller was under an obligation to provide, free of charge, goods that were not defective. However, the consumer in both cases desired – over and above such replacement – that the seller should also remove the defective goods and replace the goods in the exact same position as the defective goods had been located: i.e. laying the tiles on the floor and installing the dishwasher in the kitchen. Since the seller refused, the buyer in Weber sought to recover the cost of having the tiles removed by someone else, while in Medianess the buyer claimed restitution of the contract price after termination.

If the seller were obliged, not only to deliver substitute goods free of defects as originally agreed, but also to: remove the defective goods (Weber); deliver the new goods to the buyer’s location; and install them in the same way the buyer had done with the defective goods (Medianess), then the costs of remedying a defect would rise considerably. The question then arises whether there are limits to such an extensive obligation. Unfortunately, the position of the Directive on these issues is not entirely clear. According to the first sentence of Article 3(3), an obligation of repair or replacement arises, unless repair and replacement is impossible or disproportionate. In the second sentence of that provision, proportionality is defined in a particular way, namely in relation to the respective other form of subsequent performance: a 'remedy shall be deemed to be disproportionate if it imposes costs on the seller which, in comparison with the alternative remedy, are unreasonable'.

This annotation discusses these issues as they are analyzed by Advocate General Mazak and the Court of Justice of the EU and provides a critique of the Court's reasoning and approach, and of its implications for the future application of the Directive and the EU's approach to harmonization in this area more generally.

Keywords: EU law, contract law, consumer law, comparative law

JEL Classification: K00, K12, K13, K33

Suggested Citation

Johnston, Angus C. and Unberath, Hannes, Joined Cases C-65/09 & C-87/09, Gebr. Weber GMBH v. Jürgen Wittmer and Ingrid Putz v. Medianess Electronics GMBH, Judgment of the Court of Justice (First Chamber) of 16 June 2011 - Case Note (April 6, 2012). Common Market Law Review, Vol. 49, No. 2, 2012; Oxford Legal Studies Research Paper No. 68/2012. Available at SSRN:

Angus C. Johnston (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
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Oxford, OX1 3UL
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+44 (0)1865 276650 (Phone)


Hannes Unberath

University of Bayreuth (Deceased)

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