As of June 1, 2022, the new consumer warranty scheme has come into effect, entailing a better protection of consumers against non-compliant products and services sold within the European Union. The new scheme is the result of a review of European regulations.
The most important changes to the existing warranty scheme lie in the required proof that a product or service is or is not compliant: from now on, this proof must be provided exclusively by the seller. Digital content and services also fall within the scope of the regulations since the change.
The warranty scheme applies to the sale of consumer goods (e.g. a cupboard, a washing machine, a car, etc.) by a professional seller to a consumer, during a period of two years from the delivery of the good or service. The warranty scheme therefore only applies in a B2C context.
The seller must deliver to the buyer an item that is in conformity to the contract. But what if the product turns out to be defective anyway? In that case, the professional seller can be held liable towards the consumer on the basis of the legal warranty scheme for any defect in conformity that exists at the time of delivery of consumer goods and that manifests itself within a period of two years counting from the delivery.
An important innovation in this regard: the presumption (and thus the burden of proof) about the existence or non-existence of a conformity defect lies exclusively with the seller for the entire duration of the legal warranty. With previous regulation, this presumption only applied during the first 6 months after delivery. After the expiration of these initial 6 months, it was up to the consumer to prove that the defect was not his responsibility. This meant that, in practice, the consumer could only enjoy an effective legal warranty of 6 months.
The second important innovation is that legal warranty rules are now stipulated for digital content and services, which were previously not covered by a legal warranty. These include smartwatches, video games, streaming, USB sticks, apps, computer programs or other electronic publications. Since June 1, 2022, the legal warranty of 2 years also applies to these goods and services.
In the event that the consumer discovers a defect, he must inform the seller of this as soon as possible and in any case within two months of the discovery of the defect.
In addition to any additional damages, the consumer may rely on two remedies.
Firstly, the consumer is entitled to the free repair or replacement of the product. The choice of remedy is up to the consumer.
Secondly – and if repair and replacement are not possible or cannot be carried out within a reasonable period of time or without serious inconvenience to the consumer – the consumer is entitled to rescission of the purchase contract or an appropriate reduction in the purchase price. The sanction of rescission is subject to the additional condition that this sanction cannot be requested if the lack of conformity is minor.
The rules of consumer purchase apply in full to second-hand goods, including the two-year warranty period.
The important difference is that the seller can, however, stipulate a warranty period shorter than two years. This period cannot 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 fails to do so, the warranty period is extended to two years.
In addition to the legal 2-year warranty, companies or producers sometimes offer a separate warranty of their own.
In addition to the legal warranty of 2 years, companies or producers may offer a commercial warranty. This commercial warranty may not, of course, impair the legal warranty. In addition, the law stipulates that a commercial warranty certificate must be provided to the consumer, which must obligatorily disclose some important elements: a clear statement that the consumer is entitled by law to remedies free of charge from the seller in case of a conformity defect of the consumer good and that these remedies are not affected by the commercial warranty; the name and address of the guarantor; the procedure to be followed by the consumer to obtain the performance of the commercial warranty; the designation of the consumer good covered by the commercial warranty, and the commercial warranty conditions.
The new consumer regulation is not only good news for consumers, it is also in the interest of the environment.
Some products have an abnormally short life span precisely because the producers design them that way. In addition, some products are subject to rapid technological change, where the owner of an older version or model can no longer find spare parts for products. Even if there were spare parts, repair costs are almost always prohibitive.
This practice is fundamentally at odds with normal consumer expectations, as well as urgent ecological necessities.
European law is trying to find a solution to this. There are already several initiatives, including the Directive 2019/771, which is the basis for the renewed consumer sales regulation. Recital 32 of the Directive states that conformity implies that the good meets the durability criteria that consumers can expect.
From the Belgian angle, article 1649quater, §3,4° of the Civil Code was inserted, which stipulates that, in order to be compliant, the good must meet the requirement of being sustainable.
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 general terms and conditions.
Do you still have questions in this regard? We will be happy to help.