900 Lawyers | 19 Offices | www.mcguirewoods.com

900 Lawyers | 19 Offices | www.mcguirewoods.com

UKTI Belgium – eCommerce Webinar Series 2014

Brussels, October 14, 2014

Understanding and benefitting from the

new EU rules for online retail

Paul Van den Bulck

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New rules for e-commerce in Belgium

Entry into force on 31 May 2014 of Book VI on

Market Practices and Consumer Protection

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General context

Transposition of the European Directive on Consumer Rights

(2011/83/EC)

Applies in all Member States from 13 June 2014

Align and harmonise national consumer rules in several important

areas

strengthen consumer rights

In Belgium, Act of 21 December 2013

introducing Book VI of the Economic Law Code on Market Practices

and Consumer Protection

Royal Decree fixing the entry into force on 31 May 2014

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Main highlights of the new e-commerce rules

• No more hidden charges and costs on the internet

• Increased price transparency

• No more pre-ticked boxes

• Button “order with obligation to pay”

• 14 days to change your mind on a purchase (+ 12 months)

• Better refund rights

• EU-wide model withdrawal form

• No more surcharges for the use of credit cards and hotlines

• Clearer information on who pays for returning goods

• Better consumer protection in relation to digital products

• Common rules for businesses will make it easier for them to

trade all over Europe

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Sanctions

Incomplete mandatory mention: risk of nullity of the contract

Absence of button “order with obligation to pay”: contract is

not binding

Pre-ticked boxes: reimbursement of that payment

No correct mention of the right of withdrawal or the

unavailability of this right: extention to 12 months

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Information requirements for distance contracts

Before the consumer is bound by a distance contract, the trader

shall provide the consumer with the following information in a clear

and comprehensible manner.

1. The identity of the trader, such as his trading name;

2. The contact details:

the legal address at which the trader is established

and the trader’s telephone number, fax number and e-mail address, where

available, to enable the consumer to contact the trader quickly and

communicate with him efficiently

3. If different from the address provided in accordance with point 2°, the

address of the place of business of the trader;

4. The existence of relevant codes of conduct and how copies of them can

be obtained;

5. 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.

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Information requirements for distance contracts

6. The main characteristics of the goods or services;

7. The total price of the goods and services inclusive of taxes, …, as

well as, where applicable, all additional freight, delivery or postal

charges and any other costs;

8. The costs of using the means of distance communication for the

conclusion of the contract where that cost is calculated other than at the

basic rate;

9. The arrangements for payment, delivery performance, the time by

which the trader undertakes to deliver the goods or to perform the

services and, where applicable, the trader’s complaint handling

policy;

10.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;

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Information requirements for distance contracts

11. Where a right of withdrawal exists, the conditions, time limit and

procedures for exercising that right, as well as the model withdrawal

form;

12. Where applicable, that the consumer will have to bear the cost of

returning the goods in case of withdrawal and if the goods, by their

nature, cannot normally be returned by post, the cost of returning the

goods;

13. Performance of services: that, if the consumer exercises the right of

withdrawal after having made a request to begin the performance of

services during the withdrawal period, the consumer shall be liable

to pay the trader reasonable proportionate costs;

14. Where a right of withdrawal is not provided for: the information that the

consumer will not benefit from a right of withdrawal or, where

applicable, the circumstances under which the consumer loses his right of

withdrawal;

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Information requirements for distance contracts

15. 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;

16. The minimum duration of the consumer’s obligations under the

contract;

17. A reminder of the existence of a legal guarantee of conformity for

goods;

18. The existence and the conditions of after sale customer assistance,

after-sales services and commercial guarantees;

19. The functionality, including applicable technical protection measures, of

digital content;

20. Any relevant interoperability information for digital content (with

hardware and software).

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Exceptions from the right of withdrawal

1. Service contracts after the service has been fully performed if the

performance has begun with the consumer’s prior express consent,

and with the acknowledgement that he will lose his right of

withdrawal once the contract has been fully performed by the trader;

2. The supply of goods or services for which the price is dependent on

fluctuations in the financial market which cannot be controlled by the

trader and which may occur within the withdrawal period;

3. The supply of goods made to the consumer’s specifications or

clearly personalised;

4. The supply of goods which are liable to deteriorate or expire rapidly;

5. The supply of sealed goods which are not suitable for return (due to

health protection or hygiene reasons);

6. The supply of goods which are, after delivery, according to their nature,

inseparably mixed with other items;

7. The supply of alcoholic beverages, the price of which has been agreed

upon the time of the conclusion of the sales contract, the delivery pf which

can only take place after 30 days and the actual value of which cannot be

controlled by he trader;

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Exceptions from the right of withdrawal 8. Contracts where the consumer has specifically requested a visit from

the trader for the purpose of carrying out urgent repairs or maintenance.

If, on the occasion of such visit, the trader provides services in addition to

those specifically requested by the consumer or goods other than replacement

parts necessarily used in carrying out the maintenance or in making the

repairs, the right of withdrawal shall apply to those additional services or

goods;

9. The supply of sealed audio or sealed video recordings or sealed

computer software which were unsealed after delivery;

10. The supply of a newspaper, periodical or magazine with the exception of

subscription contracts for the supply of such publications;

11. Contracts concluded at a public auction;

12. The provision of accommodation other than for residential purpose,

transport of goods, car rental services, catering or services related to

leisure activities if the contract provides for a specific date or period of

performance;

13. The supply of digital content which is not supplied on a tangible medium

if the performance has begun with the consumer’s prior express consent and

his acknowledgment that he hereby loses his right of withdrawal;

14. Service contracts for lotteries and bets.

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EU cross-border VAT

– Goods : VAT of the place where the transport starts;

– Services :

VAT of the place of the e-shop, but…

From 1 January 2015, there will be important

changes for intra-EU cross-border supplies of digital

services so VAT will be due where customer is

located (“place of supply”)

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Data protection : principles

Cornerstone principles concerning processing remain and are

strengthened

• Fair and lawful processing

• Purpose limitation

• Data minimisation (Direct Marketing !!!)

• Accuracy

• Limitation of the duration of retention linked to the necessity of

the processing

• Accountability

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Data Portability

= Right to obtain a copy of the data processed by electronic means

in order to transfer them to another service provider

Content still unclear:

• Is the format relevant?

• Is the fact that the data has been provided by the data subject relevant?

• Only information society services or all service providers?

• Transfer from controller to controller or from controller to data subject?

• Role of the commission to specify some technical standard?

Data protection: Rights of the data subject

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Profiling

= “an automatic data processing technique that consists of applying

a “profile” to an individual, particularly in order to take decisions concerning

her

or him or for analysing or predicting her or his personal preferences,

behaviours

and attitudes”.

Principles :

• Right not to be subject to profiling

• Profiling possible in certain cases (contract/law/consent):

• Profiling solely based on sensitive data is prohibited

Content unclear:

task of the commission or European Data Protection Board

Clear impact for online behavioural advertising

Data protection: Rights of the data subject

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Conclusion :

Constraints but also opportunities

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pvandenbulck@mcguirewoods.com

Twitter: @PBulck

+ 32 2 629 42 39

www.mcguirewoods.com

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