deskthority

Let’s break this down:

1. *New Products and the Legal Guarantee (2-Year Warranty)*
Under EU law, *new products* (even those made to order) are generally required to meet the legal standards for quality and performance. The *EU Consumer Sales and Guarantees Directive* (1999/44/EC) provides the following rights for consumers:

- *Legal Guarantee*: All new products sold to consumers must come with a *minimum two-year legal guarantee*. This guarantee ensures that the product is free from defects and complies with the contract for at least two years.
- *Defects and Non-Conformity*: If a new product (including those made to order) has defects or does not meet the expected quality or functionality, the consumer has the right to request a *repair*, *replacement*, or *refund*. This applies regardless of whether the product was custom-made or mass-produced.

2. *Made-to-Order Products*

Made-to-order products are those that are customized or manufactured specifically for the consumer. Even though these products are tailored to individual specifications, they are still subject to the same legal guarantees as any other *new product* sold to consumers.

- *Custom Products*: If a company sells a made-to-order product, it still must be free from defects and conform to the agreed-upon specifications. If the product has defects (e.g., if it does not function as expected or if it has physical defects), the consumer has the same rights as they would for any new product: a right to a repair, replacement, or refund under the *two-year legal guarantee*.

- *Bespoke or Custom Products*: The situation may differ slightly if the product is fully bespoke or made to the consumer’s exact specifications. In some cases, the consumer may have fewer rights if the product is unique and made specifically according to their instructions. However, *defects that arise from poor craftsmanship or failure to meet the agreed specifications* would still entitle the consumer to remedies under the legal guarantee.

3. *Selling New Products with Defects*

If a company sells a new product that has defects, it is *illegal to sell such products without providing a guarantee*, regardless of whether the product is made to order or mass-produced.

- *Disclosure of Defects*: If a company is selling new products with defects, it must clearly *disclose* the defects to the consumer before the sale. This includes informing the consumer about the nature of the defects and how they might affect the product’s performance or appearance. If the defects are disclosed and the product is sold at a discount, the consumer may still be entitled to remedies under the legal guarantee.

- *Consumers’ Rights*: If defects are not disclosed and a company sells a new product (including made-to-order products) with defects, it could be considered *misleading advertising* or *unfair commercial practice*, and the company could be required to repair, replace, or refund the product.

4. *Waiving the Legal Guarantee*
In the EU, *companies cannot waive the two-year legal guarantee* for new products, even if they are made to order. This is a *minimum consumer protection right*, and it cannot be excluded or reduced by the seller, regardless of the product type or whether it’s custom-made.

- *Additional Warranties*: A company may offer an additional *commercial warranty* beyond the legal guarantee, but this does not replace or affect the consumer’s rights under the legal guarantee.

- *Exclusions to the Guarantee*: In specific cases, the consumer's rights may be limited (e.g., if the defect is caused by misuse, wear and tear, or accidental damage). However, defects that existed when the product was delivered (or shortly thereafter) fall under the scope of the legal guarantee.

5. *Exceptions and Special Cases*
- *Clear Agreement on Defects*: If a company clearly explains that the product has certain known defects (e.g., a new product with minor cosmetic flaws or a made-to-order product with imperfections), and the consumer agrees to purchase it *with full knowledge* of these defects, the consumer may still have rights under the guarantee, but they may accept the product in its current condition. However, this must be clearly stated and agreed upon before the sale.

- *Bespoke or Custom-Made Products*: As mentioned earlier, bespoke or custom-made products may be treated differently in certain cases. If the product was made to the consumer's specific instructions and the defects arise from those instructions or were agreed upon beforehand, this could limit the consumer’s ability to request a remedy (e.g., a refund). However, if the defects arise from the company’s fault (e.g., poor craftsmanship or incorrect execution), the consumer is still entitled to remedies under the legal guarantee.

1. Directive 1999/44/EC on the Sale of Consumer Goods and Associated Guarantees

This is the core EU legislation governing the sale of consumer goods and the associated guarantees. It establishes the minimum rights of consumers when purchasing goods, including new products, and outlines the legal guarantee (warranty) period.

- Article 2: Defines "consumer goods" as any goods that are sold under a contract of sale to a consumer.
- Article 3: States that goods must be in conformity with the contract, meaning they must be free from defects and meet reasonable expectations.
- Article 5: Provides the consumer with a two-year legal guarantee for new goods. If the product is defective, the consumer has the right to request a repair, replacement, or refund.
- Article 6: Specifies that if defects are discovered within the first two years after delivery, the consumer has the right to request a remedy.
- Article 7: Explains the seller’s obligations, including providing remedies when the goods are non-conforming or defective.

You can find the full text of Directive 1999/44/EC here: [Directive 1999/44/EC on the Sale of Consumer Goods and Associated Guarantees](https://eur-lex.europa.eu/legal-content ... 31999L0044)

2. Directive 2011/83/EU on Consumer Rights

This directive covers consumer contracts, including distance contracts (e.g., online purchases) and off-premises contracts (e.g., sales made outside of business premises). It complements Directive 1999/44/EC, providing additional protections regarding the right of withdrawal (right to cancel) and information requirements for sellers.

- Article 16: Lists exceptions to the right of withdrawal, which are particularly relevant for customized or made-to-order goods.
- Article 5: Requires sellers to provide clear information about the goods being sold, including the main characteristics of the goods, price, and any defects.

You can find the full text of Directive 2011/83/EU here:
- [Directive 2011/83/EU on Consumer Rights](https://eur-lex.europa.eu/legal-content ... 32011L0083)

3. Regulation (EU) No 2017/2394 on Cooperation Between National Authorities Responsible for the Enforcement of Consumer Protection Laws

This regulation reinforces consumer protection by facilitating cooperation between national authorities in the enforcement of consumer protection laws, especially in cases of cross-border issues (e.g., when products are sold from one EU country to consumers in another).

- It ensures that consumers' rights to repair, replacement, or refund are respected, and that national authorities can coordinate in cases where businesses violate consumer protection laws.

You can find the full text of Regulation (EU) No 2017/2394 here:
- [Regulation (EU) No 2017/2394 on Consumer Protection Cooperation](https://eur-lex.europa.eu/legal-content ... 32017R2394)

4. Directive 2005/29/EC on Unfair Commercial Practices

This directive regulates unfair commercial practices, including misleading advertising and aggressive sales tactics. If a company advertises a product as "new" but it has defects, and fails to disclose this clearly, it could be considered a misleading commercial practice under this directive.

- Article 6: Prohibits misleading advertising and misrepresentation of goods to consumers.
- Article 7: Deals with aggressive practices, where a seller might use high-pressure tactics to coerce a consumer into making a purchase.

You can find the full text of Directive 2005/29/EC here:
- [Directive 2005/29/EC on Unfair Commercial Practices](https://eur-lex.europa.eu/legal-content ... 32005L0029)

5. Directive 2008/48/EC on Credit Agreements for Consumers (Relevance for Financing)

While not directly related to the sale of defective products, this directive may apply if the consumer purchases a product (including made-to-order) with financing. It sets out rules for the transparency of credit agreements, including when the consumer finances the purchase of defective goods.help

You can find the full text of Directive 2008/48/EC here:
- [Directive 2008/48/EC on Consumer Credit Agreements](https://eur-lex.europa.eu/legal-content ... 32008L0048)

6. Directive 2019/770/EU on Contracts for the Supply of Digital Content and Digital Services

This directive applies when the product sold is a digital content product (e.g., software or digital services). It ensures that consumers have the right to a remedy if the digital product has defects or is non-conforming, similar to physical products under Directive 1999/44/EC.

- Article 5: Deals with the right to repair, replacement, or reduction in price for defective digital content.

You can find the full text of Directive 2019/770/EU here:
- [Directive 2019/770/EU on Digital Content and Services](https://eur-lex.europa.eu/legal-content ... 32019L0770)