Scope of Application
The special rules on consumer sales, which already exist for tangible goods, have expanded to apply to goods with digital elements. Examples of these goods are an e-reader, smartphone, etc. There are also new rules for the supply of digital content (e.g., videos, audio recordings, apps, video games) or digital services (e.g., video-on-demand, streaming, cloud storage). From now on, these digital goods and services fall under the warranty required by law (see below).
The rules apply to business-to-consumer (B2C) relationships only and not to B2B ones.
What is a consumer?
“Any natural person who trades for purposes that are outside his or her commercial, business, artisanal, or professional activities.
What is a seller?
“Any natural person or legal entity, regardless of whether it is a private or public company, that trades as part of its commercial, business, artisanal, or professional activities.”
Conformity requirement
The seller must supply the buyer with goods that correspond to what has been agreed upon or what is conforming. The conformity requirement is made stricter and consists of subjective and objective elements. The subjective conformity criteria, such as the quantity, quality, etc. of the goods, are set out in the purchase agreement. From now on, updates belong to this too: a product is not conforming if it is not updated (or lacks certain updates) as provided for in the agreement. For goods, the objective elements require that the supplied goods in any event serve the purposes for which goods of the same type would be used and have the features that the consumer may reasonably expect from it. In this regard and for goods with digital elements, the seller has the duty – even outside any contractual arrangement – to provide updates.
Broadly speaking, the new rules reflect those under the current law, but the conformity requirement is now worded slightly more comprehensively than what is written in the current rules.
Consequently, according to the new rules, the question of non-conformity will come up sooner, so the liability risk for the seller is higher.
Warranty required by law
A seller is liable towards the consumer for any goods’ conformity defects that are discovered within two years after delivery. This does not apply to goods with digital elements if the contract provides for continuous delivery for more than two years. In that scenario, the seller is liable for every defect that occurs or that manifests itself in the time during which the digital content or digital service must be supplied according to the purchase agreement.
In principle, the consumer is the one that must submit proof of the existence of a defect at the time of the delivery, and any means of evidence is permitted. But this is not enough: the consumer must also demonstrate that the defect existed at the time of the delivery, which is no simple task. The legislature has somewhat helped the consumer by providing for a presumption of evidence: if the defect manifests within 6 months from the date of purchase, then it is presumed that the defect would have already existed when the consumer purchased the product. After this 6-month period, the presumption elapses and it becomes very difficult for the consumer to invoke the warranty although he still had the right to do so under law. The new legislation extends the term for the burden of proof to up to 2 years: if a defect is discovered within this time, it is presumed that the problem was already present at the time of delivery. It is therefore up to the seller to demonstrate the contrary. This significantly reduces the burden of proof for the consumer.
For second-hand goods, the shorter warranty period of 1 year applies, but the law compels the seller from now on to draw the consumer’s attention to this short period (the seller’s failure to do so would cause the period to be extended to 2 years). It is therefore important to mention this information to consumers in offers and contracts so that you can demonstrate afterwards that you did inform the consumer about it.
For entrepreneurs, this means that consumers from now on are more empowered to allege that a product is defective, and it also means that the number of products that need to be replaced or repaired will increase as anticipated.
Commercial warranty
The rules on commercial warranty, which must be given on top of the warranty required by law, are broadened.
It is prohibited to advertise and present the warranty to be more attractive than it actually is. If this occurs, the more favourable conditions must apply.
The new law requires that the proof of warranty be provided to the consumer in a sustainable data storage medium (e.g., an email).
Moreover, the law specifies more clearly what information a proof of warranty must cover. This includes a clear statement about the rights that the consumer has, free of charge, if the matter is not dealt with according to the agreement and that these rights are not affected by the commercial warranty. Furthermore, it must mention a name and address so that the consumer can invoke the warranty required by law and mention the products that the warranty covers, etc.
The new rules entered into force on 1 June 2022.
This new legislation must be read together with the new general consumer protection rules, which imposed mainly new and broadened transparency rules on sellers (including online platforms) (which entered into force on 28 May 2022). For more information, please read our newsletter (in Dutch) “Update en grondige wijziging van de consumentenregelgeving bij online handel” [Update and major amendments to the legislation on online business with consumers].
If you sell goods to consumers, we advise that you conduct thorough review of all items and stages in your business process (e.g., order change process, general conditions, contract, etc.).
We will elaborate on the abovementioned novelties in future newsletters so that you can be completely up to date.
