30-03-2022

On 17 March 2022, the Belgian project of law, transposing Directive 2019/770 on Digital Content and Services and Directive 2019/771 on Consumer Sales has been approved in the Belgian Chamber.

These Directives, adopted on 20 May 2019, relate to consumer protection and are part of a broader effort to create a digital single market. Although both Directives aim at maximum harmonization, the Directives leave a certain margin to the Member States with regard to their implementation (see below).

Both Directives apply to B2C-contracts. Whereas the Consumer Sales Directive applies to the sale of tangible and movable goods in exchange for a price, the Digital Content Directive applies to the sale of digital content (applications) or digital services (streaming services) in exchange for a price or personal data.

Although both Directives regulate the same aspects (conformity requirements, consumer remedies, exercise of remedies), the Directives complement each other, without overlapping.

Digital content and digital services will in principle fall under the scope of the Digital Content Directive. However, in the case of goods containing digital elements, the Consumer Sales Directive will apply. Goods containing digital elements can be defined as follows: Goods for which the digital content or services are “necessary” in order for the goods to fulfil their functions and which are supplied pursuant to the sales contract. For example: smart phones, smartwatches, smart refrigerators, smart TV sets, laptops, navigation devices, kitchen robots, electric bicycles, modern cars, etc. The “necessity”-requirement aims at targeting certain digital content or services that are not already incorporated in the good from the beginning. An example thereof is the necessary update of the operating software of a smartphone, installed after purchase. The requirement that the digital content or services must be included in the sales contract ensures that separately purchased digital content or services do not fall within the scope of the Consumer Sales Directive (but under the Digital Content Directive).

Under both the Consumer Sales Directive and the Digital Content Directive, an obligation to provide updates exists both as a subjective and objective conformity requirement. If the agreement is silent on the updates to be provided, the updates as reasonably expected by the consumer are to be provided by the seller. If the updates are not delivered or are delivered inadequately, this implies is a non-conformity. The duration of the obligation to provide updates depends on whether or not a continuous supply of the digital content or services is provided.

With regard to the rules on warranty periods and reversal of the burden of proof, the Directives introduce the following changes:

Under the Consumer Sales Directive: The Belgian legislator has chosen to maintain the warranty period for goods at 2 years, as is currently the case. In case of a good with digital elements, whereby the sales contract provides for continuous delivery of the digital content or the digital service for more than two years, the seller will be liable for any non-conformity of the digital content or digital service which arises or becomes apparent during the period in which the digital content or digital service has to be provided in accordance with the sales contract.

In addition, the Belgian legislator has chosen to introduce a period of two months within which the consumer must notify the seller of the non-conformity, which commences after the date on which the consumer has discovered the defect. The seller and the consumer may agree to a longer period.

Whereas previously a non-conformity that became apparent within a period of 6 months from delivery was presumed to exist at the time of delivery unless proven otherwise, this presumption period is now extended to 2 years.

Under the Digital Content and Services Directive: Where a contract provides for a single delivery or for a series of separate deliveries, the seller is liable for a non-conformity which becomes apparent within 2 years as from such delivery. This period is suspended during the time required for the digital content or digital service to conform or in the case of negotiations between the seller and the consumer with a view to an amicable settlement. Where the contract provides for continuous delivery during a period of time, the seller is liable for any lack of conformity which arises or becomes apparent during the period of time during which the digital content or digital service is to be provided under the contract. In such a case, the burden of proving conformity of the digital content or the digital service is on the seller to the extent of any non-conformity which becomes apparent during that period.

During a period of 1 year from supply of the digital content or digital service, the non-conformity is presumed to exist at the time of delivery unless proven otherwise by the seller.

Consequently, the legislative proposal entails numerous changes, which may have an impact on your business. The law will enter into force on 1 June 2022. Do you have questions about these changes? Astrea is happy to assist you in this matter.