Modernisation of consumer law
June 2022 – A law of 20 March 2022 transposed two directives into Belgian law. These directives make important changes to consumer law with regard to the sale of goods with digital elements on the one hand, and the sale of digital content and digital services on the other. As this is a European initiative, the new rules apply throughout Europe, but not outside Europe.
In Belgian law
The first initiatives to adapt consumer law to the digital market were taken at European level in 2011. Two proposals for directives resulted in the course of 2015. The first proposal aimed to regulate certain aspects of contracts for the supply of digital content. The other proposal focused on certain aspects of contracts for online and other distance sales of goods. The proposal was eventually extended to all sales channels. Both directives were finally adopted in the first half of 2019. They were recently transposed into Belgian law. This was done on 31 March 2022 by a law of 20 March 2022 which will enter into force on 1 June 2022.
The law has two main parts. The first part is dedicated to the modernisation of the rules on the sale of goods. The second part adds a new title to the old Civil Code concerning the sale of digital content and services.
Section 1: Sale of goods with digital elements
This is the smart thermostat in your home, the connected watch on your wrist...
An essential rule for this type of contract is that the consumer goods delivered by the seller to the consumer must comply with the sales contract:
the good must correspond to the seller's description in the broadest sense (description, type, quantity, quality, functionality, compatibility and interoperability);
the goods must be fit for the specific purpose intended by the consumer, which the consumer has made known to the seller at the latest at the time of the conclusion of the sales contract and which the seller has accepted;
the goods must be delivered with all accessories and instructions, including installation instructions, as provided for in the sales contract;
the good must be supplied with updates, as provided for in the sales contract.
Under the new rules, the seller is liable for any lack of conformity which existed at the time of delivery of the goods and which becomes apparent within two years of delivery. This is a major extension. Until now, a defect that appeared within six months of delivery was presumed to have been present at the time of delivery. This period is now extended to two years.
This is a rebuttable presumption. It is up to the seller to prove that there is another reason for the defect.
The rule that the consumer must notify the seller within two months is simply maintained.
The seller of such goods must furthermore ensure that they remain in conformity, which means that he must ensure the updates (such as safety updates) which are necessary to maintain the conformity of the goods and which the consumer can reasonably expect.
The seller's obligation is therefore limited to those updates which are necessary to maintain the conformity of the goods with the objective and subjective criteria for conformity.
For example, in the case of a sports watch with GPS tracking, the consumer may expect the GPS data to be regularly updated. However, upgrades that are applied to newer watches and that have no impact on the conformity of the sports watch purchased by the consumer are not included.
Finally, the good must also be durable. Again, this depends on the nature of the goods purchased and what the seller (or producer) has said about them. If the good is not in conformity - it does not do what is stated in the sales contract - there are three possibilities:
the consumer asks for the good to be repaired or replaced (unless this is not possible or would cause disproportionate costs to the seller);
the consumer obtains a proportionate reduction in price;
the sales contract is terminated (the seller takes back the goods and reimburses the consumer).
Section 2: Sale of digital content and services
The sale of digital content and services includes such things as:
computer programs, applications, video files, audio files, music files, digital games, electronic books or other electronic publications; and
digital services that enable the creation, processing or storage of, and access to, data in digital form, including on-demand software, such as video and audio sharing and other forms of file hosting, word processing or games offered in the cloud computing environment and social networks.
Internet access services are not included.
Digital gambling, online financial services or digital content provided by public sector bodies are also not included.
A completely new Title VIbis "Contracts for the provision of digital content and services" is added to the former Civil Code.
This new title describes the conformity requirements that the content or service must meet.
The warranty period for digital content and services is also two years.
But the presumption that the defect was present at the time of supply only applies if the defect appears within one year of supply. During this period the trader has to prove the contrary.
The consumer has to bring his action within one year from the day he noticed the lack of conformity.
In principle and unless otherwise agreed, the seller must supply the digital content or service without undue delay. If he fails to do so, the consumer must give the trader formal notice to deliver. If he still fails to do so, the consumer has the right to rescind the contract.
In case of lack of conformity, the consumer has the right to
a) to demand that the digital content or service be brought into conformity;
b) obtain a proportionate reduction in price; or
c) to rescind the contract.
Less well known is that as a result of this change in the law, the trader who is liable (either for failure to supply or for lack of conformity) has the right to pursue remedies against the responsible person(s) in the contractual chain without any contractual clause limiting or excluding that liability.
Important amendment
Due to its complexity, this amendment to the law has remained somewhat in the background. However, its consequences are far-reaching and it is impossible to avoid legal liability by means of a clause in the small print on the back of the order form.
