On 1 June 2022, the new Belgian rules on consumer guarantees and digital content and services will enter into effect. With the new rules, Belgium has finally transposed EU Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services and EU Directive 2019/771 on certain aspects concerning contracts for the sale of goods. Belgium has reinforced the position of consumers buying physical and digital goods by placing a higher liability on resellers and producers.
In 1999, the European Union harmonised the rules on the sale of goods to consumers and on the guarantees that sellers were required to offer consumers (Directive 1999/44/EC). Twenty years later, the directive was repealed and replaced by two directives:
(1) EU Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services (link); and
(2) EU Directive 2019/771 on certain aspects concerning contracts for the sale of goods (link).
With the Act of 20 March 2022 on consumer guarantees (link to the new act), Belgium transposed the two European Directives into Belgian law. The new Act will enter into effect on 1 June 2022. From that date both the sellers of physical goods and those of digital content and digital services will be liable to consumers in the event of lack of conformity. Consumers are entitled to 1) repair or replacement, 2) proportionate reduction of the price, or 3) termination of the sales contract.
Under the new Act, consumer goods will also encompass goods with digital elements, being tangible movable items that incorporate or are interconnected with digital content or a digital service in such a way that the absence of that digital content or service would prevent the goods from performing their functions.
Digital content is defined as “data which are produced and supplied in digital form”, while a digital service is either “a service that allows the consumer to create, process, store or access data in digital form", or “a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service.”
The definition of lack of conformity is slightly amended. From now on, the seller must deliver goods to the consumer “with all accessories and instructions, including on installation" and with the updates provided for in the contract. For goods with digital elements, the seller must also provide security updates necessary to keep the goods in conformity for the period of time that the consumer can reasonably expect.
Where the consumer fails to install, within a reasonable time, updates supplied by the trader, the trader will not be liable for a lack of conformity. Likewise, a lack of conformity resulting from the incorrect integration of the digital content or digital service into the consumer's digital environment will not be regarded as lack of conformity of the trader if the incorrect 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 goods and taking into account public statements made by the seller or other persons upstream in the chain of contracts (e.g. the producer).
Regarding the burden of proof, any lack of conformity, which becomes apparent within two years (as opposed to six months under the previous regime) from the time when the goods were delivered, will be presumed to have existed at the time when the goods were delivered unless proved otherwise by the seller or unless this presumption is incompatible with the nature of the goods or with the nature of the lack of conformity.
The extension of this period from six months to two years will significantly increase the liability of resellers (and producers) because all goods sold to consumers, which show a lack of conformity within two years, will have to be repaired or replaced at the expense of the seller (and thus in reality of the producer). Belgium thus offers broad protection whereas this period may be one year only in the other member states.
Regarding digital content and digital services, however, the presumption of liability of the seller remains limited to one year, not two.
Finally, it is important to stress that the guarantee provisions for digital content and digital services apply to a traditional sale in consideration of price, and now also to transactions where the consumer “pays” by providing access to his personal data.
Tom Heremans - Partner, Brussels
Elisa Le Grelle - Professional Support Lawyer, Brussels
