Austria: Lack of CE marking is not necessarily a defect

 

In its decision of 28.06.2023, 7 Ob 43/23h, the Supreme Court had to deal with the question of whether the lack of a CE marking constitutes a defect. The background was the purchase of a property including a building. The contract of sale referred to the building plans and the building description. Specifically, it was stated that the execution of the building permit and the underlying plans complies with the official requirements and the relevant ÖNORMs in force at the time of the building permit. Point 4.8 of ÖNORM B 5320 states that windows and exterior doors must bear a CE marking in accordance with the Construction Products Regulation, unless there are exemption provisions. This was not the case here, although experts found that the technical quality and usability of the construction products was not impaired by this. To put it simply, the products met the technical requirements, the only thing missing was the CE marking.

The plaintiff sought improvement, specifically the replacement of the front door, the windows, the balcony door and the patio door, with products bearing a CE marking. The defendant countered that the request for improvement was vexatious and that the plaintiff was concerned with enforcing price reductions.

The action was dismissed. In summary, the Supreme Court held that a service is to be regarded as defective in the sense of warranty law if it falls qualitatively or quantitatively short of what is owed, i.e. the content of the contract. The subject matter of the contract owed is determined by the characteristics usually assumed or expressly or implicitly warranted. This must be assessed from the point of view of the recipient of the declaration. Since the CE marking does not make any statement about the quality of the construction product, but only states which requirements the product generally meets, a defect solely due to the use of non-CE-marked construction products can only be considered if a CE marking has been (explicitly) agreed. Not every general reference to the "applicable ÖNORMEN", as in this case merely a general reference, makes the provisions part of the contract in their entirety.

In other words, the Supreme Court states that it is only in the case where a particular designation has been expressly agreed that its absence constitutes a defect. Otherwise, the quality of the product per se must be taken into account. The general reference to an ÖNORM does not mean that a specific property is always considered to be expressly agreed.

This decision is essential in that it is based on actual quality and not on labelling. A lack of labelling is therefore not the end of the line in a warranty dispute. Rather, it is possible to prove that the product technically fully corresponds to what was contractually agreed.

 

For further information, please contact:

Konstantin Fischer, Lawyer

Zumtobel + Kronberger + Rechtsanwälte OG, Salzburg

Email: fischer@eulaw.at

t: +43 662 624500

 

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