Belgium

Status

Adopted

Explanatory note re status

The legislative process for the implementation of the Omnibus Directive into Belgian law has been completed by introducing amendments to the Code of Economic Law.

The Act transposing the Omnibus Directive was adopted by the Parliament on 5 May 2022, and will be subject to the royal assent before its publication in the official journal (Moniteur Belge).

As required by the Omnibus Directive, the new rules have come into force on 28 May 2022.

Implementation Act

Act amending Books I, VI and XV of the Code of Economic Law (Code de droit économique)

(Envisaged) Implementation Date

As required by the Omnibus Directive, the new rules have entered into force on 28 May 2022.

Approach to implementation

Amendments to existing laws (see "Implementation Act" above).

Next steps

N/A

A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts?
Has the option to limit the penalties been implemented?

The modified Article XV.70 of the Code of Economic Law imposes administrative or criminal fines, which are organised in 6 levels. According to Article XV.70 § 1er of the same code, level 1 sanction consists of a fine ranging from a minimum amount of EUR 26 to a maximum amount of EUR 5,000 or 4% of the turnover total annual turnover of the last closed financial year preceding the imposition of the fine. By contrast, a level 6 sanction consists of a fine ranging from a minimum amount of EUR 500 to a maximum amount of EUR 100,000 or 6% of the total annual turnover for the last closed financial year preceding the imposition of the fine in respect of which data used to establish the annual turnover are available.

Articles 34, 35 and 36 of the transposition proposal establish non-exhaustive and indicative criteria to be taken into consideration for the imposition of penalties, which will be transposed in Article XV.70 § 3.

Sanction levels for penalties are reviewed to meet the minimum amount of the maximum fine set in the Directive. If there are no indications for an estimate of the annual turnover, the maximum fine will be EUR 2,000,000 (Article XV.70 § 2).

Penalties imposed on the seller or supplier for the same infringement in other Member States in cross-border cases where information about such penalties is available through the mechanism established by Regulation (EU) 2017/2394 of the European Parliament and of the Council (Article XV.70 § 3.5)

Article Art.XV.83 of the mentioned code contains the list of infringements subject to penalties, including nine new provisions described in Article 37 of the transposition proposal.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

According to the new Article VI.18 of the Code of Economic Law, any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.

This does not apply to goods liable to deteriorate or expire rapidly.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

Pursuant to Article XV.83 of the Code of Economic Law, infringements of consumer rights related to the indication of the prices will be subject to level 2 sanctions: a minimum amount of EUR 26 to a maximum amount of EUR 10,000 or 4% of annual turnover total for the previous year, if it represents a higher amount;

The criteria for the imposition of fines will take into account the following factors (non-exhaustive):

the nature, gravity, scale and duration of the infringement;
any action taken by the seller or supplier to mitigate or remedy the damage suffered by consumers;
any previous infringements by the seller or supplier;
the financial benefits gained or losses avoided by the seller or supplier due to the infringement, if the relevant data are
available.

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

The new and updated definitions of the Unfair Commercial Practices Directive, such as "digital services and content" will be included in Article I.8 (40) of the Code of Economic Law.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Article I.8 (46) of the Code of Economic Law will include the definition of “ranking”.

Traders who offer search functionalities will have to provide clear information on the main parameters used to rank the goods in online searches and their relative importance, according to Article VI.99 of the mentioned Code.

If the trader does not comply with the above obligation, this constitutes a misleading omission according to the mentioned article.

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

According to the modified Article VI.99 § 4 (6) of the Code of Economic Law, traders who sell goods and services on online marketplaces will be required to inform consumers whether an item is purchased from another consumer or a different trader.

This information is labelled as 'essential'. Failing to provide this essential information at all or failing to provide it in a clear and unambiguous way will be regarded as a misleading omission according to Article VI.99 § 4 of the mentioned Code.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

Belgium has included the option to introduce new regulations with respect to commercial excursions (unsolicited visits by a trader to a consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers).

Art.VI.66 § 2 of the Code of Economic Law allows the Government to take measures to protect the interests of consumers. Such provisions must be proportionate, non-discriminatory and justified on grounds related to the consumer protection.

V. What transparency obligations must traders who publish consumer reviews now comply with?

Traders will be obliged to inform the consumer about whether and how they ensure that reviews originate from consumers who are actual users/buyers (Article VI.100.25 of the Code of Economic Law).

This information is labelled as 'essential'. Failing to provide this essential information at all or failing to provide it in a clear and unambiguous way will be regarded as a misleading omission according to Article VI.99 § 4 of the mentioned Code.

In addition, several practices in relation to consumer reviews will be added to Article VI.100 of the mentioned code, including practices that will be regarded as unfair:

Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results (Article VI.100.24);
Reselling events tickets to consumers if the trader acquired them by using automated means to circumvent any limit imposed on the number of tickets that a person can buy or any other rules applicable to the purchase of tickets (Article VI.100.27);
Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers (Article VI.100.25); and
Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products (Article VI.100.26).

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

Article VI.98.3 of the Code of Economic Law will consider the following provision a misleading commercial activity: “any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors”.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

Belgian consumers can exercise their rights pursuant to the available actions in the Belgian Civil Code.

Additionally, Article VI. 38 of the Code of Economic Law contains redress measures against unfair commercial practices.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

Please see our answer under A. for details.

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Goods with digital elements as well as digital content and digital services will be subject to the same rules as all other goods and services covered by the Consumer Rights Directive.

For goods with digital elements and digital content and digital services, however, additional information requirements for traders will apply (to be implemented in Article VI.45.§ 1er. (18) and (19) of the Code of Economic Law and Article VI.64.§ 1er. (17) and (18) of the same Code).

These stipulate that - before conclusion of the contract - the trader must inform the consumer about the following:

where applicable, the functionality of the goods with digital elements or of the digital products, including applicable technical protection measures; and
where applicable, and where material, the compatibility and interoperability of the goods with digital elements or digital products, to the extent that this information is known or ought to be known by the trader.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

The amended Consumer Rights Directive will apply to contracts for the provision of digital services for which the consumer does not pay a price but provides personal data to the trader.

This also applies to contracts for the provision of personal data which is not stored on a tangible medium, for which the consumer provides personal data in return. Provision by the consumer also occurs when the trader sets cookies or collects metadata, provided that the acts in questions are to be regarded as the conclusion of a contract.

However, the Consumer Rights Directive does not apply if the trader processes the personal data provided by the consumer for no other purposes than:

fulfilling its contractual obligation by supplying the digital content; or
for complying with legal requirements to which the trader is subject.

These provisions will be included in Articles VI.2/1, VI.44/1 and VI.63/1 of the mentioned code.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

According to Article VI.45 § 1er. (3) of the Code of Economic Law, traders will have to provide their geographical address, email address and telephone number to the consumer when concluding a distance or off-premise contract.

In addition, information about other means of communication that enable consumers to store correspondence with the trader on a durable medium must now also be provided.

There will be a new information obligation in Article VI. 45 § 1er. (21):

According to this traders must inform consumers if they have personalised the price of the specific product/service on the basis of automated decision-making. The information must be provided in a clear and comprehensible manner before the conclusion of the contract with the consumer.

Additionally, traders will have to comply with the following obligations:

a reminder of the existence of a legal guarantee of conformity for goods, digital content and digital services (Article VI.45 § 1er. (12) Code of Economic Law);
where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital content and digital services (Article VI.45 1er (18) Code of Economic Law); and
where applicable, any relevant compatibility and interoperability of goods with digital elements, digital content and digital services that the trader is aware of or can reasonably be expected to have been aware of (Article VI.45 § 1er. (19) Code of Economic Law).

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

According to Article VI.45/1. § 1er of the Belgian Code of Economic Law, information obligations apply to operators of online marketplaces. These information obligations, inter alia, include information about:

the main parameters for determining the ranking presented to the user;
whether the third party offering their goods, services or digital product is a trader or not;
the non-applicability of consumer protection law if the third party offering the goods, services or digital product is not a trader; and
where applicable, how the obligations related to the contract are shared between the third party offering the goods, digital services or digital content and the operator of the online marketplace.

Additionally, Belgium could impose additional information requirements for providers of online marketplaces, which shall be proportionate, non-discriminatory and justified on grounds of consumer protection.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

After termination of the agreement, including in case of withdrawal from the agreement, traders must refrain from using the digital content that is not personal data and that was provided or created by the consumer when using the digital content or digital services provided by the trader, unless that content:

a) has no utility outside the context of the digital content or digital service supplied by the trader;

b) only relates to the consumer’s activity when using the digital content or digital service supplied by the trader;

c) has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or

d) has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.

The trader must - upon request - also provide the consumer with the content provided or created by the consumer (unless the first three exceptions (a), (b) and (c) as mentioned apply), which must be done free of charge, within a reasonable period of time and in a common and machine-readable format.

The relevant changes will be included in Article VI.50 (§ 5-7) and on Article VI.70 (§ 5-7) of the Belgian Code of Economic Law.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

Pursuant to the modified Articles VI.53.1 and VI.73.1 of the Belgian Code of Economic Law:

In the case of contracts where services are provided in exchange for the provision of personal data by the consumer, the right of withdrawal expires when the services are fully performed. For contracts for the provision of services for which the consumer pays a price (money), the right of withdrawal does not expire until the services have been fully performed and the consumer has expressly consented to the performance of the service before the expiry of the withdrawal period and acknowledged the expiry of the right of withdrawal.

Pursuant to Article Articles VI.53.13 and VI.73.13 of the mentioned code:

In the case of contracts for digital content that is not delivered on a durable medium and for which no price is paid (money), the right of withdrawal expires at the beginning of the performance of the contract. If the consumer pays a price, the right of withdrawal only expires when the consumer has performed prior express consent to begin the performance during the right of withdrawal period, the consumer has provided acknowledgement that he thereby loses his right of withdrawal, and the trader has provided confirmation of such acknowledgement to the consumer.

VII. What penalties can be imposed for infringements of consumer rights?