Since 1 June 2022, the new consumer guarantee scheme has entered into force, which means that consumers are now better protected against products and services sold non-compliant in the European Union. The new regime is the result of a revision of European regulations.

The most important changes to the existing warranty regime concern proof that a product or service is or is not compliant: henceforth, this proof must be provided exclusively by the seller. Since this change, digital content and services also fall within the scope of the Regulation.

Scope

The warranty scheme applies to the sale of consumer goods (e.g. a wardrobe, washing machine, car, etc.) by a professional seller to a consumer for a period of two years from the delivery of the good or service. The guarantee system is therefore only applicable in a B2C context.

What are the consumer’s rights under the legal guarantee?

The seller must deliver to the buyer an item that complies with the contract or in conformity with the contract. But what if the product turns out to be defective? The professional seller may then be held liable to the consumer, on the basis of the legal guarantee regime, for any lack of conformity existing at the time of delivery of the consumer goods and occurring within two years of said delivery.

An important innovation: the presumption (and therefore the burden of proof) concerning the existence or not of a lack of conformity rests exclusively on the seller for the duration of the legal guarantee. According to the old regulations, this presumption applied only during the first six months after childbirth. After the expiry of these initial 6 months, it was up to the consumer to prove that the defect was not his responsibility. This means that, in practice, the consumer could only benefit from an effective legal guarantee of 6 months.

The second important innovation is that the rules of legal guarantee are now also stipulated for digital content and services, for which there was previously no legal guarantee. These include smartwatches, video games, streaming, USB sticks, apps, computer programs or other electronic publications. Since June 1, 2022, the 2-year legal warranty also applies to these goods and services.

Possible remedies

In the event that the consumer discovers a defect, he must inform the seller as soon as possible and in any case within two months of the discovery of the defect.

The consumer may, in addition to any additional compensation, invoke two remedies.

First of all, the consumer has the right to obtain free repair or replacement of the product, in addition to possible compensation for damages. The choice of remedy is left to the discretion of the consumer.

Secondly – and if repair and replacement are not possible or cannot be carried out within a reasonable time or without serious inconvenience to the consumer – the consumer is entitled to the termination of the sales contract or to an appropriate reduction in the purchase price. The sanction of the resolution is subject to the additional condition that this sanction cannot be requested if the lack of conformity is minor.

Legal burden of proof for second-hand goods

The rules of sale to the consumer also fully apply to second-hand goods, which means that the two-year warranty period also applies to second-hand goods.

An important difference is that the seller can set a warranty period of less than two years. This period may not be reduced to less than one year. In addition, the seller must inform the consumer of the shorter warranty period in a clear and unambiguous manner. If the seller does not do so, the warranty period is extended to two years.

In addition to the legal 2-year warranty, companies sometimes offer a separate warranty of their own.

In addition to the 2-year legal warranty, companies can offer a commercial warranty. This commercial guarantee cannot, of course, affect the legal guarantee. In addition, the law stipulates that a certificate of commercial guarantee must be given to the consumer, which must include certain important elements:
a clear statement that the consumer is legally entitled to free remedies from the seller in the event of lack of conformity of the consumer good and that these remedies are not affected by the commercial guarantee; the name and address of the issuer; the procedure to be followed by the consumer to obtain the execution of the commercial guarantee; the description of the consumer goods covered by the commercial guarantee; and the terms of the commercial guarantee.

Durability

The new consumption regime is not only good news for consumers, it is also in the interest of the environment.

Some products have an unusually short shelf life, precisely because producers have designed them that way. In addition, for products subject to rapid technological change, the owner of an older version or model may no longer be able to find spare parts for products of that version or model. Even if spare parts were available, repair costs are almost always prohibitive.

This practice is fundamentally in contradiction with the normal expectations of consumers, but also with a glaring ecological necessity.

European law is trying to find a solution to this problem. There are already several initiatives, including the renewed regulations on sales to consumers.

Recital 32 of the Directive states that conformity implies that the good meets the sustainability criteria that consumers are entitled to expect.

On the Belgian side, Article 1649c, §3.4 ° has been inserted which provides that, to be compliant, the property must meet the following requirements, and more precisely;

“(4) be in quantity and have the qualities and other characteristics, including in terms of durability,… . “

This is a welcome development.

Finally, as mentioned above, the new warranty scheme will guarantee an effective warranty period of 2 years, which obviously has repercussions in terms of durability.

If you sell to consumers, we therefore recommend that you review your terms and conditions.

Do you have any questions about this? We will be happy to help you.

Flor VERTOMMEN

Denis PHILIPPE