European Union


In the “tile case” the BGH decided about the teleological reduction in the scope of directive-compliant interpretation of national law. The BGH had to decide if Section 439 (2) of the Civil Code [BGB = Bürgerliches Gesetzbuch] (version before 1 January 2018) is to be interpreted as including removal and disposal of the defective purchased good and in which case the objection of disproportion according to Section 439 (3) of the Civil Code (old version) is available.
According to Article 3 of the Consumer Rights Directive the seller of a consumer good has the right to refuse the subsequent performance in case of disproportionate costs. So far it was uncertain whether the German understanding of disproportion was equal to the European interpretation.
Therefore, the BGH asked the ECJ in a preliminary ruling procedure, if the provisions of the first and second subparagraphs of Article 3 (3) of the Consumer Rights Directive are to be interpreted as precluding the German provision under which, in the event of a lack of conformity of the consumer goods delivered, the seller may refuse the type of remedy required by the consumer when the remedy would result in the seller incurring costs which, compared with the value the consumer goods would have if there were no lack of conformity, and with the significance of the lack of conformity, would be unreasonable (absolutely disproportionate) and further, if the seller has to bear the costs for removal and disposal costs.

The ECJ decided that Article 3 (2) and (3) of the Consumer Rights Directive is to be interpreted in a way that the seller either has to bear the costs for the removal and installation or carry it out himself. The seller has also no right to refuse the replacement due to absolute disproportion, however he can limit the cost refund for the installation and removal to an adequate amount.

The BGH took the decision of the ECJ into account and decided that the seller has to bear the costs for installation and removal in directive-compliant interpretation of Section 439 (1) alternative 2 and that Section 439 (3), sentence 3, of the Civil Code needs to be teleological reduced to a right of refusal of relative disproportion.
The German legislator responded with a new version of Section 439, 474 and 475 of the Civil Code by the law of 28 April 2017 (BGBl. I, p. 969) thereby the teleological reduction has been transposed legally. The legislator even exceeded the requirements of the ECJ by including parts of the jurisprudence into the regular sales right and thereby extending it to more than consumer protection.
On the tile-case see also Möllers, Juristische Methodenlehre, 2nd ed., Munich 2019, § 12 mn. 113, § 15 mn. 40 et seqq. Generally, on the methodology of European Law see Möllers, Juristische Methodenlehre, 2nd ed., Munich 2019, § 12.
On the respective decision by the Supreme Court of Justice (OGH) also see Heizkörper-Case:


Professor Möllers


BGH, Urt. v. 21.12.2011, VIII ZR 70/08 – Fliesen = BGHZ 192, 148-172; ZIP 2012, 430-437; BB 2012, 792-797; NJW 2012, 1073-1080; CR 2012, 221-224; BauR 2012, 793-803; JZ 2012, 468-473; VuR 2012, 154-156: ZfBR 2012, 341-348; VersR 2012, 623-629; RIW 2012, 313-319; WM 2012, 1143-1150; DNotZ 2012, 671-683


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BGH Urteil englisch

EuGH, Urt. v. 16.6.2011, C-65/09 und C-87-09, EU:C:2011:396 – Gebr. Weber GmbH gegen Jürgen Wittmer (C-65/09) und Ingrid Putz gegen Medianess Electronics GmbH (C-87/09)


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EuGH Urteil französich