Belgian B2C guarantee regime revised : new challenges for businesses
A little late given transposition deadlines, Belgium has finally adopted an Act transposing two Directives relating to the sale of consumer goods :
- Directive 2019/771 on certain aspects concerning contracts for the sale of goods amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC ; and
- Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services.
The Act of 20 March 2022 amending the provisions of the former Civil Code relating to consumer sales, inserting a new Title VIbis in Book III of the old Civil Code and amending the Code of Economic Law (“Act”) has been published in the Official Gazette on 31 March 2022
This Act will come into force on 1st June 2022 and will apply to contracts concluded after its entry into force.
Please find hereafter an overview of the main changes to the guarantee regime introduced by this Act.
1. Broader definition of good
Article 1649bis, 4° of the Civil Code provides for a new definition of good that includes now also digital goods, more particularly any tangible movable items that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions.
The revised rules on guarantee will also apply to these goods with some specificities due to the nature of the goods.
2. Burden of proof : extension of the presumption period for lack of conformity of the good
As a reminder, the legal guarantee protects the consumer from possible defects appearing within two years after the purchase of a good.
Until now, Belgian consumers did not have to prove that a defect already existed at the time of purchase, if this defect became apparent within the first six months. After six months, it was up to the consumer to prove that the defect already existed at the time of purchase and that it was not due to misuse. This was, in practice, very difficult to prove for the consumer.
The Act and more particularly Article 1649quater of the Civil Code extends this presumption period to the full legal guarantee period of 2 years. The burden of proof will be hence on the seller for the entire duration of the two-year guarantee. As allowed by the Directive 2019/771, the Belgian legislator has decided to extent the one-year period laid down in the Directive to a period of two years from the time when the goods were delivered.
3. New rules for commercial guarantee
The Act sets out a legal definition of the commercial guarantee in the new Article 1649bis, 11° of the Civil Code.
Commercial warranties are contractual (not legal) warranties that are not mandatory. The seller/manufacturer is therefore free to determine the conditions of this guarantee. However, the general rule on commercial guarantees is that they cannot reduce the legal guarantee of the final consumer. It must be more advantageous than the legal guarantee.
In order to improve legal certainty and to avoid misleading the consumer, the Act provides that, where the commercial guarantee conditions included in the corresponding advertising are more favorable to the consumer than those included in the guarantee statement, the more favorable conditions shall prevail.
Finally, the Act specifies the following rules on the content of the guarantee statement and the way in which it must be made available to the consumer:
- The guarantee statement has to be written in plain and intelligible language and in a language that the consumer understands, so basically French, Dutch or German depending on the region where he/she is residing;
- The guarantee statement has to include the following elements:
- a clear statement that the consumer is legally entitled to remedies against the seller, free of charge, in case of lack of conformity of the consumer goods, and that the commercial guarantee has no effect on such remedies;
- the name and address of the seller;
- the procedure to be followed by the consumer to obtain the implementation of the commercial guarantee;
- the designation of the consumer goods to which the commercial guarantee applies; and
- the conditions of the commercial guarantee.
4. Modification of the guarantee for second-hand goods
Article 1649quater §1 of the Civil Code provides that, in the case of second-hand goods, the seller and the consumer can agree on a shorter guarantee period, which may not be less than one year.
The Act completes this article and introduces an obligation for the seller to inform the consumer of this shorter period in a clear and unequivocal manner. If he fails to do so, the two-year period, if any, shall apply. The burden of proof for this obligation lies with the seller.
This Act is in line with the general trend towards better consumer protection in Belgium and in the EU. The guarantee rules are either extended or clarified to allow consumers to have better access to remedies.
Consequently, as a business, you need to take these changes into consideration and review your commercial guarantees and guarantee processes in general to make sure your business is or will be compliant by 1st June 2022.
We can assist you in the review of those documents and ensure that you are compliant with the new legal regime.