Analyse

Recently, two European directives were transposed in Belgium by a law concerning the consumers protection in the context of contracts for the supply of digital content and services and contracts for the sale of goods.

This very important law is part of the legislator's wish to further protect consumers when concluding consumer contracts in general.

On the one hand, this new law extends the existing rules for all contracts, and on the other hand, it introduces specific rules for digital matters. In particular, it makes it easier and safer for consumers and businesses to buy and sell goods and digital content across borders.

1. Which goods are newly included in the scope of the amended regulation?

The law adds digital content to the scope of the legal guarantee.

The new protected goods are defined as any tangible movable object that incorporates digital content or a digital service, or is interconnected with such content or service in such a way that the absence of the digital content or service would prevent the consumer good from fulfilling its functions.

For example, "digital content" or "digital service" includes films, applications, music, video games and software, social networks and downloads.

With the development of the internet and information and communication technologies more generally, transactions involving digital content objects have led to an explosion of transactions. Such transactions may be effected by the delivery of a physical medium incorporating the digital content in question - for example a CD or DVD - but also by means of an online download - the downloading of an application from Google Play, or streaming - via a platform such as Netflix or Spotify.

So, most of the services available online fall actually within the scope of the new law.

In addition, the law specifies that electricity (in addition to gas and water) is considered to be tangible personal property when it is offered for sale in a limited volume or quantity.

However, contracts for the sale of live animals are excluded.

2. What is new with regard to conformity of sold goods?

The definition of lack of conformity has been slightly modified. From now on, the seller must deliver the goods to the consumer "with all accessories and instructions, including installation instructions" and with the updates provided for in the sales contract to be considered compliant.

For goods with digital elements, the seller must also provide the security updates necessary to maintain the conformity of the goods for a period the consumer can reasonably expect.

But the consumer also has obligations. If the consumer does not install the updates provided by the seller within a reasonable time, the seller will not be liable for the lack of conformity. Similarly, a lack of conformity resulting from poor integration of the digital content or service into the consumer's digital environment will not be considered a lack of conformity on the part of the seller if this poor integration is due to the consumer.

Durability also becomes a criterion for assessing the conformity of goods. Goods must be capable of maintaining their functions and performance under normal conditions of use. Durability is assessed according to the nature of the good and taking into account public statements made by the seller or other persons up the contract chain (e.g. the producer).

3. What is the impact of this new law on the legal guarantee period?

A very important change for the benefit of the consumer is the extension of the period during which the good was presumed to be delivered defective.

Previously, the defect had to appear within the first 6 months after the purchase.

From now on, this presumption is extended to the entire two-year period of the legal guarantee.

The consumer will therefore no longer have to prove that the defect existed from the outset in order to bring the guarantee into play.

This two-year extension will considerably increase the liability of retailers, as all goods sold to consumers which show a lack of conformity within two years will have to be repaired or replaced at the seller's expense. Belgium thus offers a broad protection whereas this period may be only one year in other Member States of the EU.

However, in the case of digital content and services, the presumption of liability of the seller remains limited to one year, not two.

4. What are the requirements of the new law regarding the commercial guarantee?

In addition to the legal guarantee, the seller or manufacturer of the product may provide an additional guarantee, called a "commercial guarantee". This can obviously never reduce the legal guarantee.

This guarantee is now regulated by the new legislation.

In order to avoid misleading the consumer, the law stipulates that, where the commercial guarantee conditions in the corresponding advertisement are more favorable to the consumer than those included in the guarantee statement, the more favorable conditions always prevail for the benefit of the consumer.

5. What remedies are available to consumers in the event of lack of conformity?

The new regime does not differ fundamentally from the current regime, except that it relaxes the hierarchy of remedies available to the consumer (repair, exchange, price reduction, rescission of contract).

From now on, the consumer has the right to demand from the seller a proportional reduction of the price or the rescission of the sales contract in each of the following cases

  1. The seller has failed to repair or replace the goods or, where applicable, the seller has refused to bring the goods into conformity;
  2. A lack of conformity appears despite the seller's attempt to bring the goods into conformity;
  3. The lack of conformity is so serious that it justifies an immediate reduction of the price or the immediate termination of the contract of sale;
  4. The seller has stated, or it is clear from the circumstances, that the seller will not repair or replace the goods to bring them into conformity within a reasonable time or without significant inconvenience to the consumer.

Indeed, where a lack of conformity appears, the consumer must inform the seller in order to give him the opportunity to bring the goods into conformity. The consumer should not, in principle, have an immediate right to a price reduction or to rescission of the contract. In addition to these remedies, the law provides for certain additional remedies, such as the award of damages.

6. What happens in the event of non-compliance with the provisions of the new law?

Non-compliance with the requirements of the law may be investigated and sanctioned in accordance with the Code of Economic law. Accordingly, the Belgian Economic Inspectorate may impose administrative fines in case of infringement. These infringements can also be sanctioned criminally. It should also be noted that beyond a classical cease and desist procedure, these infringements may give rise to an action for collective redress.

7. When did the new law come into force?

The new law applied from 1 June 2022. The provisions applies to contracts concluded after 1 June 2022.

It is therefore important for all traders and sellers to familiarise with the new rules and to adapt their consumer contracts in general and their contracts for the provision of digital content and services accordingly, especially in the general terms and conditions.

Should you need more information about this matter or should you like to be assisted, please do not hesitate to contact our specialists via info@seeds.law or +32 (0)2 747 40 07.

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Steve Griess

Steve Griess

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Leo Peeters

Leo Peeters

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Koen De Puydt

Koen De Puydt

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Alain De Jonge

Alain De Jonge

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Roeland Moeyersons

Roeland Moeyersons

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Thibault Caeymaex

Thibault Caeymaex

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Sidney Van Ommeslaghe

Sidney Van Ommeslaghe

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Aurélie Glinne

Aurélie Glinne

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