Earlier this year, the EU adopted two Directives: Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services (hereafter: the Digital Content Directive) and 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 (hereafter: the Consumer Sales Directive). In this blogpost we list the most important changes for webshop owners.
Will my sale be covered by the new rules?
As a first step, it is important to remember that both directives only regulate sales to consumers. Consumers are natural persons who act outside of a professional activity.
The Digital Content Directive regulates the sale of digital content (such as music, software) and digital services (such as cloud storage). Digital content or services where the consumer does not pay a sum of money but provides personal data (as in the case of social media accounts) are also covered by the Directive. The Consumer Sales Directive covers all sales of physical goods, whether in a shop or online. Physical goods with digital elements (such as smartphones and smart TVs) are also covered.
This means that the combined scope of the two Directives is very broad. Except in the exceptional circumstances when your sale is covered by the exceptions listed in the law (such as the sale of second-hand goods), there is a high probability that your sale will be covered by the new rules.
What will change?
Both the Digital Content Directive and the Consumer Sales Directive introduce a new conformity rule. This conformity rule means that the goods or digital content and services sold must be in conformity with the sales contract. The law provides a number of self-evident assessment criteria such as the description, type, quantity and quality of the goods, but also, for example, that the goods must be suitable for the purposes for which goods of the same type would normally be used. Important for the sale of digital content and services is that the seller will also need to deliver the updates that a consumer can reasonably expect in order to comply with this conformity requirement.
For both the sale of goods and goods with digital elements, and the sale of digital content and services, the seller is liable for any lack of conformity that exists at the time of delivery of the goods and comes to light within two years. In the case of defects discovered within one year after the delivery of the goods, it is presumed that the defect already existed at the time of delivery. The current Belgian legislation, where this is only 6 months today, will therefore be adapted in order to comply with European rules.
What if I do not comply with the rules?
The law provides a number of legal remedies available to consumers. In case of the sale of goods and goods with digital elements, you are obliged to bring the goods into conformity with the sales contract. In practice, this means that the consumer will have the choice to have the goods repaired or replaced free of charge and within a reasonable period of time. If the repair or replacement of the goods is impossible or involves disproportionate costs for you, the consumer will be entitled to a price reduction or the dissolution of the contract.
In case of the sale of digital content or services, the consumer has similar rights. In these cases you will also be obliged to make the digital content or service conform, to offer a proportionate price reduction, or the consumer will be able to dissolve the contract.
The many initiatives to regulate do not make it easy to build your webshop with the right legal framework. Consumers are increasingly aware of their rights, and the inspection services are increasingly taking a pro-active approach by carrying out inspections. It is therefore wise to have your webshop terms and conditions examined and, where necessary, to adapt them to the rules as they apply today. Our e-commerce specialists are ready to help you, and you can always contact them via firstname.lastname@example.org!
Written by Johanna Coppens, Legal Adviser deJuristen, & Irem Güzel