Direct Effects of the Directive - Essay Example

EU Law Direct effects of the directive The Sale of Goods Act of 1979 requires the all goods soldto the buyer meet the description by being of satisfactory quality, description and must be fit for the purpose. The transaction creates a contract between the trader and the client, and each party should treat the other fairly in accordance to the agreement. The effects of Act in case the goods do not meet any of those requirements is that the buyer has the right to take them back to the seller for replacement or repair within a reasonable time (Thies, 2013, p. 168). The buyer can also have the good repaired by another person and claim from the seller the refund of expenses spent on repair. The buyer can sue the trader for faulty goods within a period of six years in England or five years in Wales and Northern Ireland. The procedure to get the product repaired or replaced by the seller involves notifying the seller of the defects in goods within a reasonable time that is usually six months for the second-hand goods (Thies, 2013, p. 173). The buyer should prove the ownership of the goods and the relationship between the seller and the buyer because the seller cannot raise a claim of defect or default on goods from a trader who did not sell the goods that product to them. The buyer should produce the receipt they used when making payment or use claim using confirmation from the credit card in case the payment was charged from the credit card (Thies, 2013, p. 184). However, in case the seller is unwilling to compensate the buyer against the fault goods the seller can seek court intervention within six years in England or five years in Wales and Northern Ireland. The right to return or get a second-hand car replaced is applicable to the car dealers (Thies, 2013, p. 189). If one decides to purchase a car from a private seller, the buyer has to be cautious since the seller has no obligation to give the details of the car although they should answer any question asked by the buyer in regard to the car truthfully. In case the buyer raises the issue within six months, the seller is obliged to prove that there was no defect on the goods at the time of sale, while for the claims raised with twelve months but after a lapse of six months the regulation places the onus on the buyer to prove the goods had defects rendering them unfit for the purpose at the time they bought them (Thies, 2013, p. 141). The buyer should prove the fault of the goods using expert’s report such as engineer or a mechanic to substantiate their claim of defect. Direct effects refer to components of EU laws that are practiced by Union citizens in the Member States irrespective of clauses enacted by the Member States according to the case of NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62 [1963] the following conditions are essential for the under EU laws for direct effects to be recognized. The directives must be unconditional and independent of any other legislation enacted in the Member States, must confer a right upon which individuals can base the charges and must be appropriate and clear. This implies that a person can raise a claim relying on EU directives that meets these requirements and seek for compensation irrespective of the domestic Legislations. Sarah bought a twelve-month-old car from a Motability UK Ltd car dealer worth £5,000 and two weeks later the car developed complications in the engine that require £1,000 to repair. She raised a claim to the dealer demanding for the refund of her money since the car was useless to her. The seller has a duty to examine the car and substantiate Sarah’s claim concerning the quality of the car. The buyer has two options in this case. The first option is to request the seller to repair the car while the other option is to request for a refund. The seller cannot force the client to accept the repair since the client is unwilling to take the same car, and the seller has no option to replace a second car due to lack of a suitable match. Therefore, clients have the right to ask for a refund of the money of which the dealer cannot deny since the client considers the car useless and all she wants is her money and not for the car to be repaired. The direct effect of the directive requires retailers to compensate their clients for the goods that have defects or cannot satisfy the requirements of the clients (Eurofound, 2011a). The directive is applicable to all goods both new and second-hand goods. The requirement of the directive was that the sellers should provide buyers with goods that meet their specifications and the purpose for which they bought they should prove that they bought the goods from the respective seller and that the good had defect or was not fit for a particular purpose it was intended for (Eurofound, 2011a). Furthermore, the buyer should make compensation claim within a reasonable time. Considering the direct effect of the directive Motability UK Ltd should refund Sarah for the car because she was able to present the complaint within a reasonable time after she bought it. 2. Indirect effect of the directive This is whereby the national courts are called upon to interpret national law in regard to improperly implemented directive (Eurofound, 2011b). In order for the client to claim for the compensation of the goods, they should claim for compensation within a reasonable time and substantiate their claim that the goods had default or inappropriate for the purpose they were intended for. The clause enacted by the government prohibits clients from claiming for compensation or refund from the retailers of second-hand goods that are more than six months old (Eurofound, 2011b). Since the car was twelve months old before she bought it then it appears Sarah cannot claim for a refund or repair of the car. The clause aims to safeguard retailer against running out of business due to claims presented by the clients. The clause requires clients to request for refunds or compensation against second-hand goods that are less than six months old (Eurofound, 2011b). Since the car was more than six months old by the time the client bought it, she cannot claim for the compensation under the new clause even though she has met other requirements. According to the Sales of Goods Act of 1979, the sellers should ensure the goods sold to the clients are of the right purpose intended for. The aim of the directive was to protect the retailers but should not disadvantage the buyers. Therefore, it is senseless for the seller to sell goods that cannot benefit the buyer. Since the buyer returned the car within six months after purchase, the seller should prove the defect in the car and compensate the buyer by either repairing the car or give back her money. In this case, the buyer is unwilling to have the car repaired, and she wants the money. The dealer should refund her the money in a reasonable time without causing her unnecessary delays. However, the buyer and the dealer should negotiate on the amount to be refunded bearing in mind the buyer had used the car for two weeks before the engine broke down. The seller should deduct “recision” or charges to cover the period the buyer made use of the car (Thies, 2013, p. 117). It was reasonable for one year can provide the buyer with better services and the fact that it broke down within two weeks after the purchase implies the car had an issue at the time of forming a contract. 3. State liability under Francovich principle Francovich principle was developed in the case of Francovich and Others v. Italian Republic, and it confers upon the state the liability to seek legal damages in the national court against the breach of EU law in the member state resulting to damages to an individual. The principle in this case allowed employees to claim for damages they suffered after their employers became insolvent, and those employees were compensated following the EC directive that issued the Members States to grant them protection (Thies, 2013, p. 116). However, when the government of Italy failed to implement the directive the affected members presented the issue to the national court to seek for compensation for the loss suffered due to the failure. State liability is enforced through national court thus the national process should establish how the state liability is implemented. The Member States are free to establish the claims process so long as that method adheres to the EC requirements and ensures efficiency (Eurofound, 2011b). The principle requires the national court to protect the rights of individuals as granted by EU law where the situations where the state is liable (Thies, 2013, p. 119). The various organs of the state responsible for enforcing the rights of individuals are required to carry out their mandates in accordance to the EU laws, and the Member States maintains the accountability of enforcing individual rights. The state is considered liable in case if failure to implement the EU law or for partial implementation or in case of inappropriate implementation. The state liability is a general rule developed by the “European Court of Justice (ECJ)” to ensure formation and implementation of the EU laws and take responsibility for non-compliance by the member states (Thies, 2013, p. 123). The effects of state liability are that in case of violation of individual rights whose state was responsible for safeguarding then the state is held accountable for the damages suffered by that individual (Eurofound, 2011a). In the case of Sarah, the state should be held accountable for the damages the client may suffer in case the seller fails to refund her following the enactment of the new clause. The EU law grants individuals rights to acquire a refund from the seller in case the goods fail to satisfy the rights provided in the Sale of Goods Act of 1979. However, the clause introduced in the directive to exempt buyers from making claims on the second-hand goods exceeding six months old was inappropriate and in violation of the buyers rights provided in the EU law under refund policy (Thies, 2013, p. 137). Therefore, in case the seller fails to compensate the client for the faulty car, she can take the case to the national court and demand for compensation from the state based in the on clause protecting the sellers against claims for goods older than six months. Bibliography Eurofound, 2011a. State Liability. Available at Available at: Http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/stateliability.htm Eurofound, 2011b. Direct Effect. Available at: Http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/directeffect.htm NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62 [1963] Sale of Goods Act 1979 Thies, A., 2013. International Trade Disputes and EU Liability. UK: Cambridge University Press. Pp. 223. Read More