Mandatory information to
consumers in case of
distance contracts

The new Code on Economic Law provides some new
obligations regarding the information to supply to the consumer in case of distance contracts.

The economic legislation has been codified in the Code on Economic Law (hereinafter “CEL”).

Book VI CEL governs the distance contracts. Most of these rules did already exist in the Act of 6th April 2010 related to honest market practices and consumer protection. Nonetheless, some new elements (!) have been integrated into the CEL.

A distance contract is any contract concerning goods or services concluded between a supplier and a consumer under organized distance sales or service-provision scheme run by the supplier, who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to the moment at which the contract is concluded. (e-commerce, selling over the telephone, ...).

As soon as a professional puts its services or its products up for distance selling (or by electronic means) it has to respect the following dispositions.


A. Compulsory information that has to be disclosed before the consumer is bound by the contract

Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:

A.1 Information regarding the selling products and the trader identity

1. The identity of the trader, more specific, its company number, commercial name;

2. The geographical address, where the trader is established, as well as its phone number, its fax number and its e-mail address, if available, in order to allow the consumer to contact the trader rapidly and to communicate efficiently, and where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

3. If different from his geographical address, the geographical address of the place of business of the trader (and where applicable that of the trader on whose behalf he is acting) where the consumer can address any complaints;

4. The main characteristics of the goods and services, to an extent appropriate to the medium and the product;

5. The total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.

In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period.

Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs.

Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided;

6. The cost of using the means of distance communication for the conclusion of the contract when this cost is calculated on another rate than the basic one;

7. Where applicable, the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the service, and the trader’s complaint handling policy;

8. A reminder of the existence of a legal warranty of conformity of goods;

9. Where applicable, the existence and the conditions of after-sales services and commercial guarantees;

10. Where applicable, the existence of codes of conduct and how a copy can be obtained;

It is important to note that traders are prohibited to infer consent by using opt-out systems, such as pre-ticked boxes online. The trader must always obtain the explicit consent of the consumer.

A.2  Information regarding the right of withdrawal

The consumer shall have a period of 14 days to withdraw from a distance contract, without giving any reason, and without incurring any costs other than the direct cost of returning the goods.

In addition, in case of withdrawal the trader should reimburse all payments received from the consumer, including those covering the expenses borne by the trader to deliver goods to the consumer.

The trader does not have to refund the additional costs if the consumer expressly chose a delivery way other than the one offered by the trader.

The trader shall provide the following information:

1. Where a right of withdrawal applies, the conditions, delays and procedures for exercising that right, as well as a model withdrawal form;

2. If applicable, the fact that the consumer will be charged for the direct cost of returning the goods, (!) and if the good, because of its nature, cannot be returned via the post;

3. Where a right of withdrawal does not apply, the information according to what the consumer will not benefit from this right or, where applicable, the circumstances under which the consumer looses its right.

In respect of the law, the right of withdrawal shall not apply as regards the following:

i.  The supply of goods which are liable to deteriorate or expire rapidly (e.g. food);
ii.  The supply of sealed goods that cannot be return because of health and safety protection reasons and which were unsealed by the consumer (e.g. underwear);
iii.  The provision of accommodation (except for housing purpose), transport, car rental services, catering or leisure services as regards contracts providing for a specific date or period of performance;
iv.  The supply of newspapers, periodicals and magazines except for the subscription contracts to these publications;
v.    ….

It should be noted that any omission concerning the right of withdrawal is sanctioned by a prolongation of the term during which the consumer has the right to exercise his right. The withdrawal period shall expire twelve months after the end of the initial withdrawal delay.

However, as soon as the trader has provided consumer with the required information, the withdrawal delay expires 14 days after the day where the consumer has received the information.

A.3 Information regarding the contract arrangements and the consumer obligations

1. The duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

2. Where applicable, the minimum duration of the consumer’s obligations under the contract;

3. Where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;

4. Where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it (!).

A.4  In case of the sale of digital products

1. Where applicable, the functionality, including applicable technical protection measures, of digital content (!);

2. Where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of (!) ;

B. Compulsory information before the contract conclusion via electronic means

If a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the following information:

1. The main characteristics of the product, to an extent appropriate to the medium and the product;

2. The total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided;

3. The duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

4. Where applicable, the minimum duration of the consumer’s obligations under the contract;

The trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. If placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader (!).

If the trader has not complied with this subparagraph, the consumer shall not be bound by the contract or order.

The online commercial websites indicate clearly and readably, by the latest at the beginning of the payment process, if delivery restrictions apply (!) and which means of payment are accepted (!).

C. Compulsory information related to the confirmation of the concluded contract


The consumer shall receive confirmation of the conclusion of the contract, on a durable medium, in reasonable time after the conclusion of any distance contract, and at the latest at the time of the delivery of the goods or when the performance of the service has begun.

The trader’s confirmation shall provide the following information:

1. All the information listed in the section A, unless the information has already been provided to the consumer prior to the conclusion of any distance contract on a durable medium;

2. The express prior consent of the consumer to the immediate supply of a digital content, which is supplied on a tangible medium and his acknowledgment that he thereby loses his right of withdrawal.

D.    Delivery of goods

Unless the parties have agreed otherwise, the trader shall deliver the goods by transferring the material possession of the goods to the consumer or to a third party, other than the carrier and indicated by the consumer, at the latest thirty days after the day of the conclusion of the contract.

In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods.


Conclusion

It is important that traders are aware of these obligations, since omissions of the required information can have as result that the consumer will not be bound by the contract.

19 November 2014

Lynn Pype - lynn.pype@peeters-law.be
Griet Verfaillie - griet.verfaillie@peeters-law.be

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