The legislative changes that will be discussed find their origin in several texts adopted at EU level: (i) Directive 2019/770 of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (the “Digital Content Directive”), (ii) Directive 2019/771 of 20 May 2019 on certain aspects concerning contracts for the sale of goods (the “Sale of Goods Directive”), and (iii) Directive 2019/2161 of 27 November 2019 regarding the better enforcement and modernisation of EU consumer protection rules (the “Omnibus Directive”).
The relevant Belgian laws are the Act of 20 March 2022 (entered into force on 1 June 2022) and the Act of 8 May 2022 (entered into force on 28 May 2022), amending both the Belgian Civil Code and the Code of Economic Law.
The present article, first in our series, focusses on the warranty and conformity provisions introduced for the sale of goods with digital elements and digital services.
New concepts introduced in B2C legislation
(a) The sale of consumer goods with digital elements
As of 1 June 2022, the legislation regarding the sale of (tangible movable) consumer goods will introduce additional consumer protection for “consumer goods with digital elements”.
These are tangible movable items that incorporate or are interconnected with digital content or digital service(s) in such a way that the absence of the digital content and/or service would prevent the items from performing their essential function. Examples include smartphones, smart TVs, smartwatches, and fitness trackers.
(b) The supply of digital content or digital services
“Digital content” refers to all data produced and supplied in a digital form. This includes digital content supplied on a tangible medium (e.g.CDs, DVDs, memory cards, and USB sticks), and the tangible medium itself, provided that the tangible medium serves exclusively as a carrier of the digital content (if not, it is subject to the rules regarding consumer goods with digital elements).
“Digital services” are services that (i) allow consumers to create, process, store, or access data in digital form, or (ii) allow the sharing of or any interaction with data in digital form uploaded or created by the consumer or other users of that service. Examples of digital content and digital services include games, e-books, cloud-based software and streaming services.
The new rules will not only apply to a typical sales contract between a trader and a consumer regarding the supply of digital content or digital services, whereby the consumer pays a price in cash, but also to consumers paying for content or services by providing personal data to the trader (with the exception of personal data exclusively processed by the trader for the purpose of supplying the content or service or for allowing the trader to comply with legal requirements).
(Lack of) conformity & obligation to provide updates
The new legislation provides a more detailed and precise set of rules to determine the conformity of supplied consumer goods (with or without digital elements), digital content and digital services. It includes both subjective requirements for conformity, i.e. those provided by the contract, and objective requirements for conformity, which will apply by virtue of the law.
According to one of the objective requirements for conformity, the trader of goods with digital elements, digital content or digital services must ensure that consumers are informed of and supplied with updates, including security updates, that are necessary for those goods, content or services to keep performing in a conform manner:
- for contracts providing for a single act of supply or series of individual acts of supply of digital elements / content / services, this applies for the entire period of time during which the consumer may reasonably expect this (taking into account the type and purpose of the goods and the digital elements, the digital content and services); and
- for contracts providing a continuous supply of digital elements / content / services, this applies for the period of time during which the digital elements / content / service is to be supplied under the contract; and
- for goods with digital elements, this period is at least 2 years from the time of delivery.
The trader is also liable in case of incorrect installation of the consumer good (with or without digital elements) or incorrect integration of the digital content or digital service, provided that the installation / integration was carried out by the trader or under its responsibility. If the incorrect installation / integration, intended to be carried out by the consumer himself/herself, was carried out by the consumer due to a shortcoming in the installation / integration instructions provided by the trader, the same liability rule applies.
Warranty & proof of non-conformity
The liability of the trader for any lack of conformity remains the same as under the existing legislation regarding the sale of tangible movable consumer goods, i.e. the trader bears liability, by cirtue of the law, for any lack of conformity that existed at the time of supply or delivery and that becomes apparent within 2 years as from that time.
This minimum warranty term of 2 years applies to both the good and its digital elements, and to the digital content / services supplied to a consumer. However, if the contract provides for a continuous supply of digital elements / content / services for more than two years, the liability period is the same as the supply period provided in the contract.
Regarding the burden of proof of the existence of the non-conformity at the time of delivery / supply, the following principles apply:
- for consumer goods (with or without digital elements), any lack of conformity that becomes apparent within 2 years after delivery shall be presumed to have existed at the time of delivery – note that this is 18 months longer than the regime applicable to consumer goods sold before 1 June 2022;
- in the case of the supply of digital content or a digital service, the same presumption applies, but only during 1 year; and
- in cases where the sales contract provides for a continuous supply of digital elements / content / services, the burden of proof lies with the trader for the entire supply period provided in the contract.
Any lack of conformity of a consumer good (with or without digital elements) must be notified by the consumer to the seller or trader within 2 months after it was discovered by the consumer. Furthermore, the consumer’s right of remedy for consumer goods (with or without digital elements), digital content and digital services will be time barred after a period of one year from the day on which the lack of conformity was discovered by the consumer.
The Act of 20 March 2022 brings several important changes to the current B2C legislation, which are of mandatory nature. This means that, unless otherwise provided, any contractual clause which (to detriment of the consumer) excludes the application hereof, derogates from them, or varies their effect, shall be null and void.
Traders operating in a B2C context, and especially in the digital economy, are therefore advised to check whether their general terms and conditions are in line with this new legislation and to update their consumer contracting documents if this is not the case.
Should you require any assistance in the field of (digital or non-digital) consumer law, please contact us.