New guarantee rules will soon offer consumers protection when making digital purchases too

New European rules will come into effect sometime in 2022, offering consumers protection if something is wrong with their purchases. These rules take into account the fact that, when shopping online, consumers increasingly make purchases outside of their own countries, and that more and more products and services have digital elements. The ‘legal guarantee’ will thus also apply to products with a digital element (such as ‘smart’ products), to digital services (such as streaming), and to digital content (such as e-books). These new rules will come into effect as soon as their implementation into Dutch law has been completed. The Netherlands Authority for Consumers and Markets (ACM) will be charged with the enforcement of compliance with these new rules.

Edwin van Houten, Director of ACM’s Consumer Department, adds: “Consumers have the right to products that come without any faults: that is a basic rule within consumer law. That right is also called the legal guarantee. This right applies to all products, and, soon, also explicitly to digital products and services. We are making this announcement right now to emphasize that businesses should start making the necessary preparations.”

To what situations do these new rules apply?

In the new rules, it has been laid down that consumers are also entitled to the ‘legal guarantee’ when purchasing:

• Goods with a digital element, think of smart devices such as smart watches or smart thermostats;
• Digital services, such as streaming services for movies or music, online games, or a cloud storage service;
• Digital content, such as an e-book or a movie, music or game file.

With regard to digital services and digital content, consumers are also entitled to the legal guarantee if they did not pay any money for them but did have to hand over personal data.

What do the new rules mean for businesses?

Sellers will have to ensure that consumers are able to use their purchases properly and safely during the normal lifespans of those products. That is why sellers are also required to provide updates. They must do so for as long as has been agreed on, and, in addition, as long as is reasonable. Sellers must indicate when updates are available, and what the consequences are if consumers do not install the updates.

Does the purchase involve services that are delivered continuously? Think of video streaming subscriptions, traffic data in navigation systems or workout plans on a smart watch. These will have to function properly during the entire contract period.

Is something wrong? In that case, the seller is required to solve the problem for free. If the seller believes the problem was caused by the consumer, the seller will have to prove this during the first 12 months after the purchase. The seller’s burden of proof has been extended from 6 to 12 months. If the seller is unable to prove that the problem was the consumer’s fault, the seller will still have to solve the problem. With regard to continuous services, the burden of proof lies with the seller for the entire duration of the contract. If the seller is unable to prove that the problem was the consumer’s fault, the seller must solve the problem by offering a repair, replacement, or refund.

Information for businesses and consumers

The new rules will come into effect across the entire European Union, and have been laid down in the Sale of Goods Directive and the Digital Content Directive. All businesses in the EU must comply with these rules, so that consumers that make purchases are protected properly across Europe. Over the next few months, ACM together with the Dutch Ministry of Economic Affairs and Climate Policy (EZK) will point out these new rules to businesses. On ACM’s consumer information portal ACM ConsuWijzer, consumers can find information about what these rules mean for them as soon as they have been incorporated into Dutch laws.

See also:

Legal guarantee applicable to digital content and digital services (in Dutch)