Modernisation of Belgian consumer protection legislation
The Belgian consumer law landscape keeps on evolving. On 2 March 2022, the Act transposing the following two key European Directives into the old Belgian Civil Code was adopted (the “Act”):
- Directive 2019/770 of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (the “Digital Content Directive”); and
- Directive 2019/771 of 20 May 2019 on certain aspects concerning contracts for the sale of goods (the “Sale of Goods Directive”).
The Act will apply as of 1 June 2022 and traders and sellers in scope should familiarise themselves with the new rules and carefully adapt their contracts accordingly, especially in the area of general terms and conditions.
What is it about?
As part of the Digital Single Market Strategy, these two Directives in the field of consumer protection aim to harmonise the national legal frameworks on digital contracts and set out rules on e.g. conformity with the contract, burden of proof and remedies. Although they contain similar rules, these directives should be seen as complementary.
In substance, the Sale of Goods Directive applies to contracts for the sale of tangible movable goods, including goods with digital elements, concluded between a consumer and a seller. The Sale of Goods Directive updates the existing Belgian legal framework on the sale of goods, which had transposed Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees and which already provided for, among others, a two-year legal warranty period from the delivery of the good.
The Sale of Goods Directive covers all sales channels and applies for example to the sale of “smart” equipment.
By contrast, the Digital Content Directive introduces a new framework and applies to any contract whereby a trader supplies digital content or service to a consumer, who pays a price in return (in money or by providing personal data). The Digital Content Directive applies regardless of the nature of the contract (e.g. sales contract, service contract, lease contract or sui generis contract).
Which contracts are in scope?
The Sale of Goods Directive applies to sales contracts concluded between consumers and professional sellers. It expressly covers the sale of goods incorporating or inter-connected with digital elements, such as the sale of a smartphone, a smart watch or a smart TV.
The Digital Content Directive covers for instance the supply to consumers of computer programs, applications, video files, audio files, music files, digital games, e-books or other e-publications, as well as digital services which allow for the creation, processing, accessing or storage of data in digital form, including software-as-a-service, such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media.
Key to note is that the Digital Content Directive does not apply to contracts regarding financial services, gambling services or healthcare. The Digital Content Directive does not apply either to contracts regarding the provision of services other than digital services or to electronic communication services, with the exception of number-independent interpersonal communications services (for instance, WhatsApp or Messenger).
What is new under the Sale of Goods Directive, as transposed by the Act?
The key modifications introduced by the Act, in respect of the sale of goods, can be summarised as follows:
- Extended scope: tangible movable goods with digital elements now also fall within the scope of the new rules
The Act clarifies that electricity (in addition to gas and water) is considered as a tangible movable item where put up for sale in a limited volume or a set quantity
Contracts for the sale of living animals are excluded from the scope of the Act - Rules on updates: sellers are to ensure that consumers are informed of and supplied with updates necessary to keep the goods with digital elements in conformity. Sellers should in principle not be liable for any lack of conformity resulting solely from the failure by the consumers to install the updates within a reasonable time
- Reversal of the burden of proof: extended time period (from six months to two years from the delivery of the good) during which any lack of conformity is presumed to have existed at the time of delivery
- List of (subjective and objective) conformity criteria is included to assess the conformity of the goods
- Certain new requirements as regards commercial guarantees, regarding for example minimum content and how to provide such commercial guarantees to the consumer
- Adapted hierarchy of the remedies available to consumers for lack of conformity:
• having the goods brought into conformity (replacement or repair);
• price reduction; or
• termination of the contract
In addition to these remedies, the Act provides for certain additional remedies, such as awarding damages
What is key to note under the Digital Content Directive, as transposed by the Act?
The new regime introduced by the Act, in respect of the supply of digital content and services, can be summarised as follows:
- Traders may under certain conditions modify features of the digital content or service (e.g. to adapt the digital content or service to a new technical environment or to an increased number of users)
- List of (subjective and objective) conformity criteria is included to assess the conformity of the goods
- Legal warranty period of two years from the delivery of the digital content or service
- Reversal of the burden of proof: time period of two years from the supply of the good during which any lack of conformity is presumed to have existed at the time of delivery
- Hierarchy of the remedies available to consumers for lack of conformity:
• having the goods brought into conformity;
• price reduction; or
• termination of the contract
In addition to these remedies, the Act provides for certain additional remedies, such as awarding damages - Rules on updates: traders are to ensure that consumers are informed of and supplied with updates necessary to keep the digital content or service in conformity. Traders should not be liable for any lack of conformity resulting solely from the failure by the consumers to install the updates within a reasonable time
What are other important features of the Act?
The Act will apply as of 1 June 2022.
Given this short timeframe, sellers and traders in scope need to start implementing the new requirements and updating their contractual documentation without delay.
The provisions transposing the Sale of Goods Directive will apply to contracts concluded after 1 June 2022.
In contrast, most of the provisions transposing the Digital Content Directive will apply to the supply of digital content or services which occurs from 1 June 2022 (with some limited exceptions).
Non-compliance with the requirements of the Act can be investigated and sanctioned pursuant to Book XV of the Belgian Code of Economic Law. As a result, the Belgian Economic Inspection could impose administrative fines in case of breach. Such breaches could even be sanctioned criminally. Also worth noting that, beyond a traditional cease and desist procedure, such breaches could be the basis for an action for collective redress.
Does it stop here?
No – Belgian consumer legislation is expected to continue evolving, including as a result of the upcoming transposition of the Omnibus Directive.
We are keeping a close eye on these initiatives.
