These rules apply only to business-to-consumer (B2C) relationships in which the consumer is the party that purchases goods and services for his or her personal use, hence not for commerce or work. It applies to the commercial trade of tangible goods, such as products with digital elements (e.g., an e-reader, smartphone, navigation systems), as well as digital services (e.g., cloud storage, streaming).
Lawmakers place the concept of the informed consumer at the center of the legislation. The general duty to inform is extended to digital service offerings. A special rule was also introduced for consumer reviews: it is forbidden to call on third parties (and pay them) to give (fake) reviews of a product or service. Doing so is regarded as a so-called blacklisted trade practice, i.e., an unfair trade practice. These are trade practices that are considered unfair under all circumstances. It must be ensured that consumer reviews can come from only consumers who actually purchased the product or service.
For online marketplaces such as e-Bay and Amazon, they must observe special rules regarding the duty to inform. For example, online marketplaces must inform the consumer about the identity of the traders that use their online platform to sell their products to consumers. Most specifically, they must let consumers known whether these sellers are traders (i.e., companies) or non-traders (i.e., other consumers). If the seller is a non-trader, the online marketplace must indicate that consumer rights and protection rules do not apply to the contract. Sellers must also inform the consumer about the factors they use for ranking in search engines. For example, if the seller pays a search engine to have a certain product ranked higher, they must indicate this. Any breach of this obligation amounts to a “blacklisted” trade practice, as mentioned above, and is therefore unfair and forbidden.
There’s one more new rule: the obligation to mention clearly the reference price in any price reduction announcement. The prior price or reference price is the lowest price applied in the 30-day period before the price reduction announcement. The purpose is to protect consumers against misleading announcements in which fake high prices are used as reference prices. This new rule means that, for example, sellers must indicate a clear reference price starting from the next sale period. This reference price must be immediately visible, so it should not be found by scanning a QR code, for example.
Finally, the sanction scheme is made stricter. Companies concerned can be fined under criminal law, which can be 4% of the company’s yearly turnover. When sanctioning, a non-exhaustive list of indicative criteria should be considered. These include the nature, gravity, scope, and duration of the violations, for example, as well as the existence of any previous violations.
The law transposing the Omnibus Directive was ratified by the plenary session of the Chamber on 5 May 2022 and entered into force on 28 May 2022. This coincides partly with the entry into force of the new rules on consumer sales, which became effective since 1 June 2022 and which sharpened and modernized the rules on conformity and warranty. These rules therefore complete each other. We discussed them in our Newsletter “New rules for consumer sales and contracts relating to digital content and digital services.”
If consumers form part of your clientele, we advise that you conduct a thorough review of your business process (e.g., by adapting your web store, general conditions, contracts, and marketing materials, etc.).
We will certainly elaborate the above new aspects in future newsletters so that you continue to be up to date.
