Today, the Act of 8 May 2022 amending books I, VI and XV of the Code of Economic Law (hereafter “Omnibus Act”) has been published in the Official Gazette. The Omnibus Act implements into Belgian law the Directive (EU) 2019/2161. The latter aims to modernize and better enforce the existing framework for consumer protection in Europe (as a reminder, link to our previous e-zine: here).
Even if it was only published today, the Omnibus Act entered into force on 28 May 2022 and does not provide for a transitional period.
As an undertaking, you might want to review and/or amend your commercial practices in light of the new provisions.
In this e-zine, you will find some useful information that can help you with such task.
MODERNIZATION: KEY AMENDMENTS AND/OR NOVELTIES
The Omnibus Act provides for a broad range of measures protecting consumers. The key takeaways can be summarized as follows:
- Extension of consumer protection to digital services : protective measures, such as obligations regarding pre-contractual information and right of withdrawal, have been extended to consumer contracts regarding digital content or digital services, even if they “pay” with personal data instead of money.
- Announcement of price reductions must refer to the lowest price applied by the undertaking during a 30-days period prior to the application of the price reduction. If a product is on the market for less than 30 days, the reference price will be the lowest price applied by the undertaking during a period of at least seven days prior to the price reduction.
- Pre-contractual obligations for online marketplaces : the latter are obliged to provide specific information to consumers in a clear and comprehensible manner, such as:
- information on the parameters for determining the ranking of offers presented to a consumer (also explicitly disclosing paid advertisement and/or payments that have been made to achieve a better ranking),
- whether or not the third party offering the goods, services or digital content is an undertaking and,
- if it is not an undertaking, the fact that consumer protection legislation stemming from EU law does not apply.
- Withdrawal : the consequences for the content that a consumer has provided when using digital content or digital services, if the latter were to exercise its right of withdrawal, are now detailed.
Extended list of practices that could be / are considered misleading :
- If prices are personalized by means of automatic decision-making, consumers should be made aware thereof.
- Marketing a product in one Member State as being identical to a product marketed in other Member States, when the composition or the characteristics of such product are significantly different, is prohibited (unless justified by legitimate and objective factors).
- Undertakings should provide information on whether and how they ensure that product reviews originate from consumers that actually purchased their products and are prohibited to claim that reviews were made by their consumers if they do not take such measures.
ENFORCEMENT: PENALTIES
The Omnibus Act introduces (non-exhaustive) indicative criteria that should be considered when penalties are imposed. Such criteria include, but are not limited to, the nature, seriousness, extent and duration of the infringement, the measures taken by the undertaking to limit the damage suffered by consumers and the undertaking's previous infringements (if any).
Moreover, the penalties for infringements of consumer protection legislation, as set out in the Code of Economic Law, have been increased. As of now, penalties up to 6% of an undertaking’s annual turnover (or a maximum of 2 million EUR if information on that undertaking’s annual turnover is unavailable) can be imposed.
