Taking into account the development of the digital market, EU Directive 2019/771 of 20 May 2019 provides for the enhanced harmonisation of certain aspects relating to contracts for the sale of goods. It concerns a maximum harmonisation. Of course, this does not prevent the seller from offering the consumer contractual arrangements that go beyond the protection provided for by law.
The Act concerns the sale of consumer goods. It amends Articles 1649bis to 1649octies of the old Civil Code. While Directive 2019/771 should have been transposed into national law by 1 July 2021 and the measures necessary to comply with the Directive should have applied since 1 January 2022, the Belgian legislator did not meet these deadlines. The new Belgian provisions will apply to sales concluded after 1 June 2022.
The highlights of these new provisions
A first important change is that the material scope has been extended. Consumer goods do not only cover any tangible movable item but also goods with digital elements. An example of the latter would be goods with “embedded software” such as a smartphone with a pre-installed operating software. Consumer goods do not include the sale of digital content and digital services. In case of any doubt about the correct qualification, the provisions on the sale of consumer goods prevail.
A second change concerns the notion of “conformity”. The Act includes subjective as well as objective requirements for conformity. Subjective requirements relate, amongst other things, to the specific characteristics and purposes for which the consumer will use the goods and of which he or she has informed the seller. Objective requirements are, for example, the purposes for which goods of the same type are used.
Third, a specific subjective requirement is that, for goods with digital elements, the seller has an obligation to provide the consumer with updates. This can include security or other technical updates for keeping the goods in conformity during a period of time that can be reasonably expected by the consumer (i.e. for how long will the consumer reasonably use the goods). This will depend on the circumstances and nature of the goods and the contract.
A fourth important modification concerns the seller’s liability for the lack of conformity. As before, the seller is liable for any defects that exist at the time of a good’s delivery and that become apparent within two years after that delivery. However, the burden of proof for demonstrating a defect has been simplified. The presumption of non-conformity is extended from 6 months to 2 years from the date of delivery. Thus, during this period, the consumer does not have to deliver proof of the defect. But the consumer still has the obligation to notify such a defect within 2 months of first noticing it. The seller may choose to give the consumer a longer period.
Finally, the modalities around the exercise of remedies and the invocation of commercial guarantees by consumers have been further elaborated. Furthermore, infringements of the provisions can from now be subject to audits by the Economic Inspection Service and can be penalised in accordance with the provisions of Book XV of the Economic Code.
The new provisions on the sale of consumer goods ensure a higher level of consumer protection. The new legislation now explicitly encompasses goods with digital elements and strengthens the legal guarantee by extending the presumption of lack of conformity from 6 months to two years after delivery.
If you would like any further information about this legal development, please do not hesitate to contact us.