On 1 June 2022, the Belgian law transposing the EU directives on certain aspects of contracts for the supply of digital content and digital services (2019/770) and for the sale of goods (2019/771) will enter into force, thereby ushering in a number of changes.
Consumer law will be modernised in order to take into account the development of the digital market and to harmonise the rules on the supply of digital content and digital services. In particular, the two-year legal guarantee of conformity will apply to the sale of goods that contain digital elements (e.g. smartphones, smartwatches, DVDs, CDs and USB sticks) as well as to the supply of digital content (e.g. video games, audio recordings, videos and mobile apps) and digital services (e.g. video-on-demand, streaming and cloud storage). However, the modernisation is not limited to digital goods, services and contents but concerns all types of goods.
The general rule remains essentially the same: consumers will be entitled to request the replacement or repair of non-conforming goods or a reduction in the price or termination of the contract (where replacement or repair is not possible) for a period of two years.
What's new is that sellers will be liable for lack of conformity in both the goods themselves and in the digital elements incorporated into the goods, if these elements form part of the sales contract.
Digital elements will be considered to form part of the sales contract where this is expressly stated in the contract or where the digital element allows the good to perform its function. In case of doubt, the digital element will be presumed to be covered by the sales contract. For example, a video application will be deemed part of a smart TV; on the other hand, a games application will not necessarily be considered part of a smartphone.
For second-hand goods, the seller may offer a one-year guarantee, provided it informs consumers of this in a clear and unequivocal manner, otherwise the two-year legal guarantee will apply.
Notification of defects
Unless the seller and the consumer agree on a longer notification period, consumers have two months from the time the consumer detects the lack of conformity to notify the seller.
Any lack of conformity which becomes apparent within two years (rather than six months) from delivery of the goods is presumed to have existed at the time of delivery, unless the seller can prove otherwise. This rule is relaxed for goods which are only intended for a single use or where the defect could only result from an external cause.
Where the seller offers a commercial guarantee (in addition to the legal guarantee), it must inform consumers of the terms thereof in a precise manner. If the advertised terms of the commercial guarantee are more favorable to consumers than those set out in the sales contract, the more advantageous terms will apply. The seller must also inform consumers that the commercial guarantee does not affect the legal guarantee.
Supply of digital content or digital services
Digital content and services must be contractually in conformity as well. Henceforth, they will also have to satisfy the principles of functionality, interoperability and security and be updated regularly.
New forms of consideration – personal data or content
A major new feature is the legal enshrinement of the business model in which the consideration for a supply of digital content or a digital service is not a price but rather personal data or content, such as photographs or posts uploaded by the consumers. There is no way to escape the law when the consideration is "free". The price can moreover be a digital representation of value (e.g. electronic vouchers or virtual currencies).
Updates and versions
Digital content and services must be updated to ensure that they remain in conformity and secure. The seller should inform consumers of the consequences of failing to install or incorrectly installing updates and why these are necessary.
The version of the digital content or service provided must be the most recent one available at the time the contract is concluded.
These rules also apply to goods that incorporate digital elements.
Tanguy de Haan | Brussels | +32 2 566 8430
Florence Verhoestraete | Brussels | +32 2 566 8452
Nathan Azizollahoff | Brussels | +32 2 566 8440