Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

We had this discussion on Committee Stage. I appreciate what Deputy O'Reilly is aiming to achieve with these amendments. Section 22(1) of the Bill, which gives effect to Article 11(1) of the sale of goods directive, provides that a lack of conformity that becomes apparent within one year of the delivery of the goods shall be presumed to have existed at the time of delivery. The section does not utilise the option in Article 11(2) of the directive that permits member states to introduce a period of two years from the time of delivery for the presumption of lack of conformity.

The reason for not opting for a two-year timeframe is based on the need, as Deputy Quinlivan noted, to achieve a reasonable balance between the rights of consumers on the one hand and, on the other, the obligations placed on businesses. The inclusion of a two-year period would negatively impact on this balance.

For instance, under the 1999 sales directive, the reverse burden of proof currently applies for only six months after delivery. Increasing the duration of this period from six months to two years would represent a sudden and sharp change in the scheme of remedies. There is also a risk that the longer a lapse in time from the delivery of goods, the greater the possibility that a subsequent lack of conformity may not have been presented at the time of delivery. That could therefore open the possibility that traders will question whether the manner in which the goods were used could have contributed to the lack of conformity.

Another reason for not adopting the longer timeframe was to ensure consistency in the terms of consumer rights across the various parts of the Bill. The digital content directive provides that the burden of proof in respect of whether digital content or a digital service was in conformity with the contract is set for a period of one year from the time of the supply. There is no option for member states to increase this period to two years. It would be insufficient and difficult to justify having a two-year period from the reversal of the burden of proof for goods, while a one-year period applied to the digital content. Therefore, this provision is to ensure consistency between digital content and goods, and acknowledges that we are already going from six months to 12 months. We must have the right balance in respect of the protection of customers and from a business perspective. It is for those three reasons that we are not proposing to accept these amendments.

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