With the Act of 20 March 2022 (Act amending the provisions of the former Civil Code relating to consumer sales, inserting a new Title VIbis in Book II of the former Civil Code and amending the Code of Economic Law), Belgium has transposed two European Directives into Belgian law:
- Directive (EU) 2019/770 of 20 May 2019 on certain aspects of contracts for the provision of digital content and services, and
- Directive (EU) 2019/771 of 20 May 2019 on certain aspects concerning contracts for the sale of goods.
Article 1649bis of the Civil Code applies to contracts for the sale of consumer goods between a consumer and a professional seller. However, one of the big novelties here is that it now also applies to digital content or digital services that are integrated or interconnected with consumer goods and that are provided with such consumer goods as part of the contract of sale, whether such digital content or digital services are provided by the seller or by a third party. If there is any doubt as to whether the provision of integrated or interconnected digital content or service is part of the contract of sale, such digital content or service is presumed to be part of it.
The new article 1649quater of the Civil Code specifies the duration of the warranty, which remains two years. Indeed, for new goods, the seller is liable to the consumer for any lack of conformity that exists at the time of delivery and that appears within two years from the delivery. Specific timeframes exist with respect to goods with digital elements (content or services). For example, if it concerns a contract for the continuous supply of digital elements for a duration of more than two years, the seller is liable for any lack of conformity arising during the period in which the digital elements are being provided.
Also, under the previous system, the burden of proof was reversed after six months, and the consumer had to prove that the defect already existed in order to be able to invoke the warranty. This no longer applies. The goal of this change is to ensure a high level of protection for consumers. Regarding second-hand goods, the seller and the consumer may agree on a shorter period of time, which may not be less than one year, but the seller must clearly inform the consumer of this shorter period of time.
Article 1649quinquies sets out the remedies available to the consumer. In the event of a lack of conformity, the consumer must inform the seller. It gives the seller the opportunity to bring the goods into conformity. The seller may refuse to bring the goods into conformity if repair and replacement are impossible or would impose costs on the seller that would be disproportionate, taking into account all the circumstances, including the value that the consumer goods would have in the absence of the lack of conformity or the extent of the lack of conformity.
Consumers can benefit from a proportional reduction of the price or the cancellation of the contract in the following circumstances:
• the seller has failed to repair or replace the goods or, where applicable, the seller has refused to bring the goods into conformity;
• a lack of conformity appears despite the seller’s attempt to bring the goods into conformity;
• 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;
• 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.
In the event of the termination of the contract, the consumer must return the goods to the seller at the seller’s expense; and the seller must reimburse the consumer for the price paid for the goods upon receipt of the goods or proof of their return. It is important to note that the termination of the contract is not possible if it only concerns a minor defect.
The Act of 20 March 2022 takes effect on 1 June 2022 and applies to contracts entered into after its effective date.
Please contact Karel Janssens for more information on this topic or for general legal advice relating to the digital economy and consumer protection.