The Sale of Consumer Goods and Associated Guarantees in Ukraine: A Comparative Analysis with EU Law

Abstract

The intention of Ukraine to join the EU makes it necessary to align the Ukrainian legislation with the standards of the EU legislation. The corresponding commitment is set forth by the EU-Ukraine Association Agreement, dated 27 June 2014. Its preamble indicates that parties are committed to gradually approximate Ukrainian legislation with that of the Union and to implement it effectively. One of the areas of cooperation and approximation of the legislation is the sphere of granting consumer protection while avoiding the setting of barriers in trade. According to Art. 415 of EU-Ukraine Association Agreement the parties shall cooperate for ensuring a high level of consumer protection and achieving compatibility between their systems of consumer protection. Currently the Government of Ukraine approved a plan for the implementation of certain legislative acts of the EU consumer protection system. The purpose of the implementation of this plan is to increase the level of consumer protection. It should be noted that this governmental document does not include the Directive 2011/83/EU on consumer rights (hereafter Directive 2011/83/EU) dated 25 October 2011 and entered into force as from 13 June 2014. However, the document includes the Directive 97/7/EC on the protection of consumers in respect of distance contracts (hereafter Directive 97/7/EC), repealed by the Directive 2011/83/EU. The reason of this choice is unclear. It seems to be due to carelessness. Indeed, Directive 97/7/EC should now be excluded from this list and instead the Directive 2011/83/EU has to be included. The main aim of this contribution is to offer a comparative analysis of Ukrainian and EU legislation, in order to understand and define the legal framework of the consumer rights concerning the sale of consumer goods. In order to create the best conditions for Ukraine to join the EU, one of the tasks of Ukrainian legislator is to provide a level of consumers’ protection not lower than that set at the EU level, and therefore to adapt the national law to acquis communautaire. One of the specific features of Ukrainian legislation on consumers’ protection is the multiplicity of regulations arising from incomplete coverage by legislation relations developing in this area. Legal regulation of the sale of consumer goods in CC, in the Law on CRP as well as in regulations and administrative provisions, causes numerous conflicts and gaps. This concerns e.g. the definition of concepts like conformity of the goods with the contract of consumer sale, the time limits where the lack of conformity becomes apparent, the time period for the liability of the seller in the case of second-hand goods, the hierarchy of the consumers’ remedies in the case of a lack of conformity. Consumer protection in Ukrainian legislation should be based on the development of modern market conditions, the main international trends in this area, taking into account European experience in the field of consumers’ protection and comply with the EU directives. The results obtained in the research lead to the conclusion that Ukrainian law concerning the lack of the goods conformity is more consumer-friendly than the Directive 1999/44/EC as it gives the consumers more rights in cases when they could not reasonably be unaware of this type of problems at the time the contract was concluded. Having analyzed Art.708 CC, it shall be deemed not to be a lack of conformity if, at the time the contract was concluded, the consumer was notified by the seller of the existence of defects in goods. There is no reservation in Ukrainian legislation that the consumer could not reasonably be unaware of the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. Therefore, references by the seller to the fact that the consumer could not reasonably be unaware of the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer, does not relieve him from liability for the defects in the delivered goods.