Учебный год 22-23 / Mistake, Fraud and Duties to Inform in European Contract Law (The Common Core of European Private Law)

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Lack of conformity entitles the buyer to an action for termination of the contract with reciprocal restitution (art. 1610 of the Civil Code) and to any extra damages when the buyer incurred an additional detriment as a result of the non-conformity (art. 1611 of the Civil Code). Compared to an action based upon the seller’s guarantee against hidden defects (see (ii), the action brought in non-conformity has two advantages: firstly, it entitles the buyer to total compensation for damages suffered, the seller’s good or bad faith being non-significant in this respect; secondly, there is theoretically no time limit to bring this action before the court other than the limitation period of 30 years.2 Here Emile could attempt to prove that the statuette delivered to him does not correspond to the thing agreed upon: an ancient statuette ‘practically intact with very few restorations’.3

However, in spite of its attractions, lack of conformity does not give rise to many actions and case law awarding a remedy under this heading is rare.4 The reason for this scarcity is explained by the crucial importance that Belgian law awards to the concept of approval or acceptance of the thing; such approval has the effect of barring actions based on lack of conformity.5 Moreover, approval could amount to ‘confirmation’6 of a mistake or fraud, barring any action in annulment, if when Emile discovered the mistake he nonetheless tacitly approved the thing.7 It is not

2A. Meinertzhagen-Limpens, ‘La vente: erreur, non-conformité et vices cachés’, no. 2. The prescription period for lack of conformity (ten years) is thus longer than the prescription period for an action brought in nullity.

3More precisely, Emile will have to demonstrate the non-conformity, the importance of additional damages and the causal relationship between the latter two: see

Y. Merchiers and M.-F. De Pover, ‘La vente -- Les contrats spéciaux -- Chronique de jurisprudence 1988--1995’, Les dossiers du journal des tribunaux, no. 13, no. 44.

4Meinertzhagen-Limpens, ‘La vente: erreur, non-conformité et vices cachés’, no. 25 (case law as to non-conformity is far less important in terms of the number of decisions than case law centred on mistake or hidden defects).

5De Page, Traité élémentaire de droit civil belge, vol. IV, nos. 114, 128, 130 and 134. Approval may be express or tacit. See Merchiers and De Pover, ‘La vente -- Les contrats spéciaux’, no. 42 (case law as to tacit approval). As to the time frontier between non-conformity and hidden defects through approval, see D. Deli, ‘Afbakeningsproblemen tussen de vrijwaring voor verborgen gebreken en de niet-coforme levering bij het hanteren van

een functioneel gebreksbegrip in de koop-verkoop’, note under Gent, 24-6-1987, RW, 1987--8, p. 1363, at pp. 1366--7.

6Confirmation is the act, express or tacit, through which a person renounces unilaterally the right to avail oneself of a relative nullity (that is a cause of nullity that was created for the benefit of a protected party who may renounce to its benefit): see G. Cornu, Vocabulaire juridique (8th edn, Paris, 2000).

7Meinertzhagen-Limpens, ‘La vente: erreur, non-conformité et vices cachés’, no. 39 in fine; see also De Page, Traité élémentaire de droit civil belge, no. 134 (although this last edition seems to except fraud).

clear from the facts however, whether or not Emile did actually approve the thing: how long did he take before he actually protested about the restorations, did he ‘use’ the thing (i.e. did he exhibit it for some time in his house) etc.?

Moreover, a claim for non-conformity could be defended on the grounds that there was no non-conformity: Emile received the statuette he chose and saw in the gallery and not the one described in the catalogue.

(ii) The seller’s guarantee against hidden defects, effective even after approval of the thing, is generally distinguished from an action based on fundamental mistake according to the nature of the defect. As far as mistake is concerned, the defect is extrinsic: it carries a subjective aspect inherent in the buyer’s will as to the specific use he personally intends to make of the thing whereas the hidden defect is an intrinsic (sometimes referred to as structural) defect that affects the thing’s so-called ‘normal use’.8 This distinction became blurred once the Cour de cassation accepted the concept of ‘functional defect’ affecting the use that the purchaser intended, with the seller’s knowledge, to make of the thing even if it does not intrinsically affect the thing.9

Should the restorations be considered an apparent or a hidden defect? A defect is considered apparent when it can be detected upon careful examination that a ‘serious man’ would devote to the affairs that are being dealt with by him.10 If the restorations are to be considered apparent defects, Emile’s case is weak if he has approved the statuette.11 On the facts here, the outcome appears very doubtful for Emile: he might have been negligent in examining the statuette, especially since even if he is not a professional buyer, he is an amateur who is knowledgeable in the field.

8 Ibid., nos. 15--19.

9Cass, 18-11-1971, Pas, 1972, I, 258 (where a product, perfect in itself, could not stand up to the specific use, of which the seller was aware, that the buyer intended to make); Cass, 17-5-1984, RW, 1984--5, p. 2090, JT, 1984, p. 566, Pas, 1984, I, 1128; Comm. Charleroi, 12-04-1994, JLMB, 1995, 276 (where the concept of ‘normal use’ amounts, under a functional view of hidden defects, to the use that the buyer had in mind, provided that this specific use entered into the contractual field).

See H. Daco, ‘Le régime des vices cachés’ in H. Daco et al., Unité et diversité du droit privé (Brussels, 1983), pp. 498 ff. describing the evolution that led to the concept of ‘functional defect’; P. A. Foriers, ‘Les contrats commerciaux’, RDCB, 1987, pp. 2 ff., nos. 60--2 (critical point of view on the notion of ‘functional defect’); Meinertzhagen-Limpens,‘La vente: erreur, non-conformité et vices cachés’, nos. 33 ff.; Merchiers and De Pover, ‘La vente -- Les contrats spéciaux’, no. 48.

10Ibid., no. 201, Cass, 29-3-1976, Pas, 1976, I, 832.

11See D. Philippe, ‘Les clauses relatives à la garantie des vices cachés’, RGDC, 1996, pp. 173 ff., at no. 2.1.

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In the alternative that the defects constitute a hidden, and not an apparent defect, four conditions must be complied with:12 (a) the defect must impair the ‘use’ that the buyer can make of the thing. Here, Emile will have to prove that the use that he intended for the statuette is excluded by its having been recently restored. He might have a hard time in doing this, even with the help of the notion of a ‘functional’ defect (see above);13 (b) the defect must be hidden, that is to say that it must not be apparent in the sense described above; (c) the defect must be of a certain importance (De minimis non curat praetor); and, (d) the defect must exist at the moment of the sale.

The burden of proof lies on the buyer and, thus, it appears that Emile might have serious difficulty in proving conditions (a) and (b). In a case decided by a court in Antwerp where a non-specialist buyer purchased antiques, that were delivered with a certificate of authenticity and of no-restoration, that actually appeared to be either from another (more recent) period or to have been restored, the court first held that the guarantee against hidden defects could work only if the restorations were not immediately visible to a normally careful buyer and then finally rejected the action on the grounds that the short time limit under art. 1648 of the Civil Code had expired.14 In view of the harshness of such case law, where the facts were more favourable to the plaintiff than they are for Emile, the latter appears to have little chance to succeed.

(iii) The notion of fundamental mistake (under art. 1110 of the Civil Code) especially in the context of the sale of works of art has already been discussed in detail (see Case 1). Here Emile will have to prove that the absence of restorations was a decisive factor in his entering into the contract. Like Anatole, he might have difficulty over the issue of excusability: should he not have seen the restorations before the sale was concluded or should he not have refused to accept delivery of the thing especially when one considers that he has some knowledge in the field? It should also be pointed out that in a neighbouring sector, that

12De Page, Traité élémentaire de droit civil belge, no. 201.

13Fontaine, ‘Les aspects juridiques’, observes that the case law tends to reject actions on the basis of hidden defects in controversies pertaining to the authenticity of works of art.

14Antwerp, 20-1-1988, RGDC, 1990, p. 33 and note M. Dambre, ‘Informatieplicht en actiemogelijkheden van partijen bij de aankoop van kunstvoorwerpen’; Antwerp, 3-1-1990, RGDC, 1993, p. 342 noted by W. De Bondt ‘Over gedupeerde kopers, vervallen termijnen en teleurgestelde rechtzoekenden’.

is public sales of works of art, there is a usage stating that the buyer accepts (or assumes) the risk of mistake.15

(iv) As we have seen in Case 1, fraud is a useful avenue to explore in terms of remedies since it prevents, in principle, the issue of excusability from being raised. If Emile can prove that the seller intentionally deceived him in the catalogue, he might have a chance of succeeding.16 However, Emile will probably have a hard time in proving that the seller’s deceit was intentional simply by producing the latter’s catalogue. Indeed, in the Antwerp case (see (ii) above) the court rejected the cause of action based on fraud, even though the seller was a professional antiques dealer, in the absence of satisfactory evidence that the seller’s deceit was intentional (‘conscious and voluntary’).17

To conclude, the highest chance of success would be in an action based on fraud but the likelihood of success is not significantly higher, in our view, than in Case 1.

England

This situation is very different from Cases 1 and 2. Here, the seller makes a positive statement of fact which is inaccurate; and the buyer, rather than the seller, requires a remedy. Emile will consider a range of remedies arising out of the misrepresentation.

(i) Remedies for breach of contract, for which he must show that the statement of description was incorporated into the contract. He may show that there was an express guarantee in terms of the description -- in establishing this, a court will ask whether the parties are to be taken to have intended this promise to be incorporated into the terms of the sale, and in this the fact that the seller is in a particularly favoured position to know the facts about what he is selling is relevant (although not conclusive).18 Alternatively, if Emile can show that he bought the piece by reference to the description, it will (in the absence of stipulation to the contrary in the contract) be implied that there was a condition in the contract that the piece would comply with the description: Sale of

15Goux, ‘L’erreur, le dol et la lésion qualifiée’, no. 10; P. Van Ommeslaghe, ‘Examen de jurisprudence’, no. 15.

16See Fontaine, ‘Les aspects juridiques’, p. 407: if the seller consciously abused the buyer’s incompetence to sell him a non-original work or if he deceived him on the basis of a false certificate, there is a cause of action on the basis of fraud.

17Antwerp, 20-1-1988, RGDC, 1990, p. 35.

18Heilbut, Symons & Co. v. Buckleton [1913] AC 30; Dick Bentley Productions Ltd v. Harold Smith (Motors) Ltd [1965] 1 WLR 623.

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Goods Act 1979, s. 13. In such a case, Emile would be entitled to claim a reduction in the purchase price of the goods, or rescind the contract;19 or reject the goods (as long as he has not yet ‘accepted’ them -- a term which includes not only intimating to the seller that he accepts them in spite of the breach, but also the lapse of a reasonable time during which he could have examined the goods),20 and sue for damages for breach of contract (or, if he preferred, just sue for damages). Damages in contract are calculated so as to protect the injured party’s expectations: here, broadly, such a sum of money as would allow him to go into the market and obtain a piece equivalent to the one which Far Eastern Delights have failed to deliver.

(ii) Since the statement is a material misrepresentation on which he relied (or can be taken to have relied) Emile may be able to rescind the contract (the contract is voidable for misrepresentation). The fact that he could have discovered the truth will not limit this remedy, if he relied on Far Eastern Delights’ statement. There are, however, restrictions on the remedy: here the most likely restriction is that of ‘lapse of time’ -- the remedy is barred if Emile does not take steps to rescind the contract within a ‘reasonable time’. The facts are not sufficiently clear to advise. We do not know how long it is since he bought the statuette (the notion of ‘reasonable’ time seems to be related to the idea that the misled party should have the time necessary to take steps to find out that the statement is false).21 And even if some time has elapsed since the contract of purchase, Emile would still be entitled to rescind if he can show that the statement by Far Eastern Delights was fraudulent (that is, not made with an honest belief in its truth), since time cannot run against him in a case of fraud until he discovers the fraud (or, perhaps, ought to have discovered it, if it is by his fault that he failed to do so)22 -- again, we do not know the circumstances.

Emile might also consider seeking damages in tort for misrepresentation: these would not be calculated to fulfil his expectation

19Sale of Goods Act 1979, s. 48C (inserted by Sale and Supply of Goods to Consumers Regulations 2002, which implemented EC Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees). A consumer buyer may require the seller to repair or replace goods which do not conform to the contract or, where those remedies are impossible or disproportionate, require a reduction in the purchase price or rescind the contract. These remedies are additional to the existing remedies for breach of contract (rejection of the goods and/or damages).

20Sale of Goods Act 1979, s. 35; Bernstein v. Pamson Motors (Golders Green) Ltd. [1987] 2 All ER 220. The timescale is unclear in the case of Emile and Far Eastern Delights.

21Leaf v. International Galleries Ltd [1950] 2 KB 86 at p. 91.

22Armstrong v. Jackson [1917] 2 KB 822 at p. 830; Redgrave v. Hurd (1881) 20 Ch D 1 at p. 13.

(as in a breach of contract), but to cover his losses: here, broadly, the diminution of his wealth as a result of entering into the contract to buy the actual, defective, statuette (and including any consequential out-of- pocket losses, such as fees paid to experts to establish the defects in description). Such a remedy can be obtained if he can show fraud on the part of Far Eastern Delights (the tort of deceit); or alternatively23 under Misrepresentation Act 1967, s. 2(1), which imposes liability for precontractual statements without fraud, except where Far Eastern Delights can show that they had reasonable ground to believe, and did believe, the truth of the statements.

Emile must choose between remedies for breach of contract, on the one hand, and rescission/damages in tort on the other. His choice of remedy will depend, in part, on how favourable the contract would have been for him, had the representations about the statuette been true. If, on that basis, he had struck a good bargain, he is likely to prefer damages for breach of contract, since that gives him a higher measure to enable him to pay for a new, equivalent piece (although there is no requirement that he must so spend the damages once awarded). If it was a poor bargain, damages in tort (if he can establish a tort) are likely to be more favourable.

(iii) In accordance with the principles of mistake discussed above, in relation to Case 1, Emile will be able to rely on his mistake as to the qualities of the statuette only if there was no contractual provision governing the defects; and if he can show that Far Eastern Delights shared the mistake and that the defect was sufficiently fundamental to make the piece ‘essentially and radically different’ so as to render the contract void ab initio. There is no equivalent case: we are told that a contract for a horse believed to be sound but not in fact sound is not a sufficient mistake to render the contract void;24 but there is a case where the purchase of a completely different quality of commodity was held to be sufficient.25 It would be a question of fact for a judge to decide whether the mistake is sufficiently serious to pass the test, although in practice Emile would not rely on this remedy, since his claims for damages (and perhaps rejection) for breach of contract, or rescission and/or damages for the misrepresentation, are clearly adequate here.

23A cause of action in the tort of negligence is in practice not useful because the rules of the 1967 Act are here more favourable for Emile.

24Bell v. Lever Bros. [1932] AC 161 at p. 224.

25Nicholson and Venn v. Smith Marriott (1947) 177 LT 189: table linen sold at auction as being the property of King Charles I, although it was in fact Georgian; the main ground, though, was for breach of contract (misdescription).

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The solution to this Case flows from the position taken by English law, discussed in relation to Case 1. Here, however, it is a case of caveat emptor since it is Emile, the buyer, who seeks a remedy. And the fact that Emile is an amateur, dealing with a professional, means that a court will tend to view him as more likely to be reliant on the seller (which is then shown in the legal rules for incorporation of the seller’s statements into the contract).

France

Emile can first of all have the contract annulled by showing that he gave his consent by mistake (erreur) or fraud (dol). It is also necessary to consider whether he can seek termination (résolution) of the contract for hidden defects or for breach of non-conformity on the grounds of defective performance. Two potential causes of action are therefore available:

(i) Emile may be able to annul the contract on the grounds of mistake, the conditions of which have already been set out above and/or fraud.

(a) Mistake consists in believing true what is wrong and conversely.26 Emile seems to have made such a mistake: he thought he was buying a Tang statuette almost intact and hardly restored whereas very little of the original work actually remained. Thus, there is a disparity between what Emile had imagined and the reality. However, things would be different if the catalogue had indicated that the statuette had been ‘largely restored’. In such a case, Emile would be deemed to have accepted an uncertainty, which would have prevented him from invoking his own mistake (L’aléa chasse l’erreur).27

In order to succeed Emile will have to prove that he made a mistake and as already noted, the French courts have adopted a subjective view of substance.28 Two potential obstacles remain, proving reliance on the mistake and that it induced consent. First, Emile must prove that he relied on the representation made by the seller (the catalogue). If he fails, the sale will not be annulled.29 Secondly, he will have to prove that

26Ghestin, Traité de droit civil, no. 490, p. 455; F. Terré, P. Simler and Y. Lequette, Les obligations (8th edn, Paris, 2002), no. 208.

27Civ 1, 31 March 1987, Bull civ I, no. 115.

28Civ 1, 28 January 1913, S, 1913. 1. 487; Com, 20 October 1970, JCP 1971. II. 16916, note J. Ghestin. According to French legal theory, cf. R. J. Pothier, Traité des obligations (Paris, 1768), no. 18, for example, two interpretations of the concept of substance are possible; the first objective: the substance is the material from which the object is made. The second subjective: the substance is the main quality that the parties took into account when contracting. These two views can both coincide and diverge.

29For some examples, see Com, 20 October 1970, n. 33; Civ 1, 13 June 1967, Bull civ I, no. 215; Civ 3, 29 May 1970, D 1970.705.

the mistake induced his consent, that is to say, had he known that the statuette had been restored that much, he would not have contracted or would have contracted under different conditions. Emile will probably succeed on both these points if he refers to the gallery’s catalogue. The latter indeed shows the characteristics of the statuette on which a buyer would reasonably have relied. However, Emile’s success will depend on the interpretation of the facts by the trial courts.

Nonetheless, as seen in Case 1, the courts sometimes refuse to annul a contract when the buyer’s mistake is inexcusable. The only issue which is controversial here is whether the mistake is the result of Emile’s own negligence or thoughtlessness. Can Emile be blamed for not noticing at first sight that the statuette had been substantially restored or for failing to ask for more information? As already explained, in order to decide whether or not the mistake is excusable, judges will take into account the age, profession and knowledge of the buyer. In the present case, Emile is an art lover, and his mistake may therefore be considered inexcusable. On the other hand, even if Emile is an art lover, he is an amateur (consumer) dealing with a professional (the art gallery) and this fact may enable the courts to condone his mistake.

(b) Secondly, Emile may try to prove that the seller acted in bad faith, and especially that he made a fraudulent statement in the catalogue. This would enable him to bring an action under art. 1116 of the Civil Code.30 There would be several advantages for Emile to claim fraud rather than mistake, as already seen. First, the former is easier to prove because it lacks the psychological aspect of the latter. Secondly, fraud enables remedies to be granted in cases of non-fundamental mistakes which do not normally lead to the contract’s annulment. Thirdly, such an action would avoid discussion about the excusable nature of Emile’s mistake. Last but not least, such a claim enables the plaintiff to be awarded damages in addition.

Emile has a fairly good chance of showing that the art gallery was liable in fraud. As already mentioned, the courts have interpreted the concept of fraudulent manoeuvres broadly: fraud can consist in a positive act (ploys or lies), or in an omission, as long as either is aimed at being misleading.31 Thus, Emile can try to prove that the art gallery

30Article 1116: ‘The contract can be cancelled for fraud when the behaviour of one party is such that, without this behaviour, the other party would not have contracted.’ (‘Le dol est une cause de nullité de la convention lorsque les manoeuvres pratiquées par l’une des parties sont telles, qu’il est évident que, sans ces manoeuvres, l’autre partie n’aurait pas contracté.’)

31Civ 1, 10 July 1995, Rép. Def. 1995, 36210, no. 138, obs. J.-L. Aubert.

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deliberately lied in the catalogue. A specialist in ancient oriental art, the latter, cannot possibly have not seen that the statuette had been restored. If Emile fails to prove that the gallery lied intentionally, in the alternative he may then plead that it committed fraudulent concealment (réticence dolosive).32 In the present case, the art gallery could be blamed for not informing Emile as to the extent of the restoration.

(ii)If Emile fails on either of the above-mentioned grounds, he may seek a remedy on the basis of the seller’s defective performance.33 He may well prefer to do so. The burden of proof is certainly less onerous but the choice is open to him only if he acts quickly (art. 1648 of the Civil Code). Under the law of sale two possible legal bases lie, on the grounds of arts. 1604 and 1641 of the Civil Code (see also Case 6).

First, Emile may allege a breach of the statuette’s conformity on delivery (art. 1604 of the Civil Code). Indeed, the statuette does not conform with the terms of the contract: little is left of the original work. The general rule is that the buyer can bring an action for non-performance within 30 years. However, in practice, conformity is checked much more quickly. The buyer has to accept or refuse the delivered goods at the place and time of delivery when possible, or after testing the goods.34 In the case of non-conformity upon delivery, the buyer has a right to seek termination (résolution) of the contract (arts. 1184 and 1610 of the Civil Code).35 It should be noted that under French law, termination is retrospective and restores the parties to the position they were in before the contract was made.

(iii)In the alternative, Emile could try and make a claim under art. 1641 of the Civil Code (garantie des vices cachés) in respect of the seller’s

32Civ 3, 15 January 1971, Bull civ III, no. 38: ‘Fraud can result from the fact that a party hides to the other material fact in the knowledge of which the latter would not have contracted.’

33Concerning the distinction between mistake, latent defects and non-conforming delivery, see: J. Ghestin and B. Desché, Traité des contrats, La vente (Paris, 1990),

pp. 818--56; Y.-M. Serinet, Les régimes comparés des sanction de l’erreur, des vices cachés et de l’obligation de délivrance dans la vente (thèse Paris I, 1996, 3 vols.).

34F. Collart-Dutilleul and P. Delebecque, Contrats civils et commerciaux (3rd edn, Paris, 1996).

35Article 1184: ‘. . . The aggrieved party can, at his choice, ask for specific performance when it is possible, or seek termination and damages.’ (‘. . . La partie envers laquelle l’engagement n’a point été exécuté, a le choix ou de forcer l’autre à l’exécution de la convention lorsqu’elle est possible, ou d’en demander la résolution avec dommages et intérˆets.’) Article 1610: ‘If the seller fails to deliver within the agreed time, the buyer may, at his choice, seek termination or injunction if only the seller can be blamed for the delay.’ (‘Si le vendeur manque à faire la délivrance dans le temps convenu entre les parties, l’acquéreur pourra, à son choix, demander la résolution de la vente, ou sa mise en possession, si le retard ne vient que du fait du vendeur.’)

guarantee against hidden defects.36 To succeed, Emile must show that:

(a) there is to be a hidden defect inherent in the goods, (b) the defect was not apparent but existed at the time of the sale, and (c) the defect made the goods improper for normal use. Moreover, Emile must bring the action within a short period of time (art. 1648 of the Civil Code). The redhibitory aspect of the defect will probably be the most difficult element to evaluate. In the present case, can the extent of the restorations make the statuette improper for its normal use? If it is to be a collector’s item then the answer is yes. On the other hand, properly using a work of art may simply be a question of looking at it, but then, if the restorations are shocking to the observer because they appear at first sight, it follows that the defect is not latent, but apparent and Emile would be more successful invoking art. 1604 of the Civil Code.

Lastly, it should be noted that art. 1644 of the Civil Code37 offers another remedy to Emile as the buyer, enabling him to keep the statuette and ask for a reduction of the price.

Germany

In contrast to the two previous cases this scenario deals with the situation where one party’s performance diverges from what has been agreed in the contract. Therefore the first possible remedy which should be considered is Emile’s guarantee claim that the goods are not of proper quality and fit for contractual use. Emile may choose termination of contract or reduction of the purchase price because repairing the statuette (according to § 439)38 seems impossible.

(i) A claim to terminate the contract (§§ 437 Ziff 2, 440, 323, 326 I 3) or for a reduction of the purchase price (§§ 437 Ziff 2, 441) requires that the goods bought by Emile are defective. A defect can lie in the fact

36‘The seller is liable to guarantee if a latent defect in the goods sold makes it improper for its normal use, or alters this use so dramatically that the buyer, if aware of the defect, would not have bought the goods or would have bought it at a lower price.’ (‘Le vendeur est tenu de la garantie à raison des défauts cachés de la chose vendue qui la rendent impropre à l’usage auquel on la destine, ou qui diminuent tellement cet usage, que l’acheteur ne l’aurait pas acquise, ou n’en aurait donné qu’un moindre prix, s’il les avait connus.’)

37Article 1644: ‘Under arts. 1641 and 1643, the buyer can choose to give the goods back and be reimbursed, or to keep the goods and be reimbursed a part of the price . . .’ (‘Dans le cas des arts. 1641 et 1643, l’acheteur a la choix de rendre la chose et de se faire restituer le prix, ou de garder la chose et de se faire rendre une partie du

prix . . .’)

38The new regulation of warranty in the BGB (§§ 437 ff.) is accorded to the Directive 1999/44/EC (OJ 1999 L 171).