The great majority of distance sales transactions concluded and/or performed via electronic communication means (telephone, fax, e-mail, internet, etc) are consumer sales transactions. Such transactions are governed by the national laws of EU Member States that implement core European legislation such as the Distance Selling Directive and the E-Commerce Directive.
On 1 September 2004, Belgium finally implemented into its national law the EU Directive of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (the “Directive”). The Directive introduces a standard set of consumer protection provisions relating to the sale of consumer goods, the most notable of which requires that all consumer goods purchased anywhere within the EU come complete with a minimum two-year legal guarantee.
The Belgian Implementation Act (as published on 21 September 2004 in the Belgian Official Gazette) (the “Act”) will come into force on 1 January 2005 and will only apply to consumer sales contracts concluded after this date. This is, however, sometime after the date by which Member States were expected to have in place applicable implementation legislation - 1 January 2002.
The Act introduces sections 1649bis till 1649octies into the Belgian Civil Code, and constitutes a faithful implementation of the Directive but is complemented with some stricter protective provisions.
In general, the Act applies to sales agreements of any tangible moveable consumer goods between a professional seller, i.e. any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession, and a consumer, i.e. any natural person who is acting for purposes which are not related to his trade, business or profession.
However, although the Act will apply to any tangible moveable item, such as the sale of works on a physical carrier or media (such as CD, CD-Rom or DVD), it will not apply to intangible works, such as audiovisual works or software that can be obtained and utilised purely via a download.
The Act governs both statutory guarantees and commercial guarantees.
Under the statutory guarantee for defects, the seller guarantees conformity of the goods sold with the terms of the sales contract. Specifically, he will be liable to the consumer for any lack of conformity which exists not only at the moment that the goods are delivered to the consumer but also that becomes apparent within a two year period after delivery.
The Act contains a reversible presumption that consumer goods are in conformity with the contract if they:
- comply with the description given by the seller and/or correspond with the description or qualities of any sample or demonstration goods used by the seller to conclude a sale with the consumer
- are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted
- are fit for the purposes for which goods of the same type are normally used(d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labeling
The seller shall not be bound by such public statements, if he can show:
- that he was not, and could not reasonably have been, aware of the statement in question
- that by the time of conclusion of the contract the statement had been corrected
- that the decision to buy the consumer goods could not have been influenced by the statement
The burden of proof of the existence of a defect lies with the consumer. However, if a defect appears during the first six months following delivery, there exists an iuris tantum presumption that the product was defective at the moment of delivery. It is then up to the seller to prove that the product was delivered without defect. However, there is an exception to this presumption – it will not be upheld if it is incompatible with the nature of the goods or the nature of the lack of conformity, for example, in the case of second hand products.
Additionally there is a general exception to the presumption. If, at the time the contract was concluded, the consumer was aware, or could not reasonably be unaware of, a defect in the goods, or such a defect originates in materials supplied by the consumer themselves, then it is deemed that there was no lack of conformity such as to make the seller liable to the consumer.
Unlike the Directive, the Belgian provisions on hidden defects (as set out in section 1641 of the Civil Code) will continue to apply after the expiry of the two year period, providing for a stronger consumer protection.
In a change to the provisions for the sales of goods set out in the Civil Code, the Act provides that the consumer has the right to choose the remedy (other than financial compensation for damages relating to the loss of use of the goods) s/he wishes to enforce. In the first instance s/he can demand the free repair or replacement of the defective goods. If this is impossible, not proportionate, i.e. when the costs for seller are exorbitant in comparison with other remedies, or cannot be done within a reasonable time period or not without any significant inconvenience for the consumer, s/he can demand an appropriate price reduction or (except where the defects are considered to be minor) rescind the contract for those goods. All of these remedies can be exercised without the consumer incurring any further costs to themselves.
Furthermore the Act introduces obligations of transparency upon sellers which apply to commercial guarantees. These guarantees are granted by the seller or the manufacturer on a voluntarily basis, on top of the protection provided by the statutory guarantee.
A commercial guarantee shall be legally binding on the seller under the conditions laid down in the guarantee statement and any associated advertising (for example, on a website of the seller or the manufacturer).
In any case, the commercial guarantee shall:
- state that the consumer has statutory rights under applicable national legislation governing the sale of consumer goods and make clear that those rights are not affected by the commercial guarantee
- set out in plain intelligible language the contents of the guarantee and the essential details necessary for a consumer to make a claim under the commercial guarantee; notably the duration and territorial scope of the guarantee as well as the name and address of the guarantor. In accordance with section 13.1 of the Belgian Trade Practices Act, the guarantee has to be drafted in at least the official language(s) of the region where the goods are actually marketed (Dutch/French/German)
- be made available to the consumer on his or her request in writing or feature in another durable medium available and accessible to him (for instance via e-mail or on a website)
Should a commercial guarantee infringe the foregoing requirements, the validity of this guarantee shall in no way be affected and the consumer can still rely on the guarantee and require that it be honored.
As a conclusion, the Directive/Act constitutes a further complement to existing consumer protection provisions such as the Directive on product liability.
As a result of the Directive/Act, professional sellers of consumer goods should review and adapt their contractual terms and strategy on an EU-wide scale, taking into account national variations in the implementation of the EU legislation.
They should deal more carefully with the contents of any product offers, advertisements and descriptions included in their electronic communications (websites, e-mails, etc.).
Finally, it will not simply suffice to elect the law of a non-Member State as the law applicable to the contract in order to circumvent the protection granted by the Directive/Act. If it is clear that in the absence of such an election of law clause, the sales contract would be governed by the law of a Member State offering more consumer protection than the chosen law, then that election of law clause shall be deemed null and void.
 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, O.J. 07 July 1999, L 171/12.