Shopping online – what are your rights under Belgian law?

Shopping online offers you greater choice and savings. Under Belgian law (and EU law), you also enjoy a set of basic consumer rights. Here is an overview of your legal rights when you buy goods or services on the internet.

The "distance selling" rules apply not only to online shopping, but also to other purchases outside a traditional shop (e.g. by telephone or mail order). In essence, these rules protect consumers in their relation with professional traders. In other words, the protection rules apply if a consumer buys online from a professional supplier, but not if the buyer is a professional himself (if he or she uses the goods or services for professional purposes) or if the seller is not a professional (for instance, in case of second-hand goods bought from non-professional sellers). Also, specific (but similar) rules apply to particular goods and services such as contracts for financial services, contracts for the supply of electricity or gas and contracts concluded trough an auction (such as eBay).

The right of withdrawal – 14 days to change your mind

In Belgium, when you buy goods or services online (or via telephone or mail order), you have at least 14 calendar days to withdraw from the contract and return the goods or cancel the services that you bought. You enjoy this right by law, and the 14-day period will apply even if the T&Cs of your supplier (or any other statement by your supplier or contract between you and your supplier) state a shorter period or state that you waive your right.

In many other EU countries, the minimum return period is only 7 calendar days. However, thanks to new EU rules that will apply as from 13 June 2014 at the latest, consumers will have a return period of 14 calendar days across the EU (note also that the new EU rules will automatically extend the return period to 1 year if the seller does not clearly inform the customer about his or her withdrawal right).

If you want to exercise your right of withdrawal, make sure to notify your supplier in writing (e.g. per email, letter or fax) as soon as possible, and in each case before the end of the 14-day period.

It is important to keep in mind that you do not have to mention any reason for cancelling your contract, and that the supplier is not allowed to charge you any cost or penalty for doing so. Under the current Belgian and EU rules, suppliers have to refund their customers for the purchase and the delivery costs within 30 calendar days (this will change to 14 calendar days under the new EU rules). Under the current rules, your only costs will be the costs directly related to returning the goods to the supplier. Under the new EU rules, professional suppliers will have to clearly inform their customers beforehand if they will charge customers for the return costs, otherwise they will have to bear the costs of returning themselves.

How should you calculate the 14-days period? Well, it's quite simple. In case you bought goods, the 14-day period will begin from the day following the day of delivery of the goods. In case you bought services, the return period begins from the day following the day of conclusion of the contract.

Note that there are some exemptions from the right of withdrawal. These exemptions cover, for instance, perishable goods, audio/video/software downloads, newspapers and magazines and personalized goods that were made to the customer's specification.

The right to delivery within 30 days

Under Belgian law and EU law, the supplier has 30 calendar days to execute the order (unless the parties have agreed otherwise – check the online T&Cs of your supplier). In normal circumstances, almost all suppliers will deliver goods bought on the internet within 5 working days (check the website of the supplier for more information).

If the product you paid for turns out to be unavailable, the supplier will have to inform you and refund you within 30 calendar days. Remember that, if you receive your package at a date when it no longer suits you (for instance, the package was delivered after the birthday party for which you bought it), you can always exercise your right of withdrawal.

If you did not receive your package, but your supplier refuses to acknowledge this, the law says that it is up to the supplier to prove the delivery and to clear out the problem with the postal service (and to send you an identical good or refund you in case the package cannot be retrieved). In other words, the burden of proof rests on the supplier, not on the customer, and the supplier cannot ask the customer to clear out possible problems with the postal service.

What many customers do no realize is that, under EU rules, a seller cannot prevent you from buying goods online or cannot charge you a higher price (apart from delivery costs) simply because you live in a different EU country. Many online sellers will try to redirect you automatically to your national webstore (which may have different product or different prices), but this practice may be contrary to EU rules on free circulation of goods and services.

The right to a 2-year guarantee

Under Belgian and EU law, if you buy from online sellers (in Belgium or in the EU), and the goods that you bought turn out not to be as advertised or to be faulty, you have a 2-year legal guarantee to request replacements or repairs free of charge. In fact, you also have this right when you buy goods in a shop. The 2-year term will start as from the moment of delivery. For second-hand goods, the minimum term is 1 year. If the product you bought cannot be repaired or replaced within a reasonable time or without inconvenience, you may request an appropriate price reduction or a refund of the purchase price and cancellation of the contract (but not necessarily for minor defects).  

In the first 6 months after delivery, consumers who used the product correctly do not have to prove that the product was faulty or not as advertised at the time of delivery. In other words, during the first 6 months, there is a legal assumption that the defect or non-conformity existed at the time of delivery. A supplier who contests this assumption will have to prove that the defect or non-conformity was absent at the time of delivery or that the customer did not use the goods in a correct way. Once the first 6 months have passed, the consumer will have to prove that the defect or non-conformity existed at the time of delivery. In other words, it is important that you check the proper functioning of your purchase shortly after you received it.

Quite importantly, a supplier cannot deny his customers their rights under the 2-year legal guarantee by imposing his own contractual terms or by imposing a shorter or less favorable guarantee.

When you decide to buy an extra guarantee, first check in what sense this extra guarantee differs from the legal guarantee. For example, a 5-year extra guarantee that applies as from the moment of delivery will, in reality, be limited to only 3 extra years.

Always make sure to notify your supplier in writing (e.g. per email, fax or post) as soon as possible after discovering a defect. If your supplier does not react, then make sure to send a registered letter. The law does not specify a minimum period to notify your supplier of a defect, but contractual terms (such as T&Cs) can limit this period to a minimum of 2 months after discovering the defect. If you decide to start a legal procedure against your supplier, then do so within 1 year after discovery of the defect.

The right to clear information

Under Belgian law (and EU law), you have the right to receive clear information on the goods or services that you buy and on the supplier before you conclude your purchase. In particular, you should check the website for the following information (which online sellers are required to give to you):

• the name of the supplier and his postal address (also check whether the website mentions a registration number or VAT number and contact details such as an email address and a fixed telephone number; if only a mobile telephone number or a postbox address are mentioned, these are really bad signs).
• the main characteristics of the goods or services;
• the price of the goods or services, including all taxes (e.g. VAT);
• the delivery costs;
• the arrangements for payment, delivery or performance;
• the existence of a right of withdrawal and its modalities;
• the cost of using the means of distance communication, where it is calculated other than at the basic rate (e.g. expensive telephone  of fax numbers, sms services, etc);
• the period for which the offer or the price remains valid;
• the minimum duration of the contract in the case of contracts for the supply of products or services to be performed permanently or recurrently.

Other points to look out for when buying online

Make sure you only buy from sites that have a secure internet address (you should see https in the URL in stead of http or a little lock).

Use a credit card when you buy online. This is often a safer choice than payment by bank transfer. When you pay with your credit card, you can always get your money back from your credit card company in case of fraud or non-delivery, or when you cancel the purchase and the supplier refuses to refund you. In any case, never buy online with cash transfers such as Western Union or MoneyGram.

In case of doubt, check the reputation of the site on the internet or on specialized forums. For instance, with "Howard" (www.theshoppingassistant.com), you can check basic information on the trustworthiness of a website.

When checking out, verify whether the price is still correct (whether no additions have been made to the initial cost and whether all costs are included, such as delivery costs or administration costs).

Protect your computer with up to date anti-virus systems and firewalls.

Check your package when it is delivered. If you have any doubts about the quality of the delivery (e.g. a dented box), then refuse the delivery or sign off the delivery 'without prejudice'. If, after opening the package, you are not happy with the content, then inform the seller as soon as possible in writing (e.g. per email, fax or letter).

In case of technical problems with your computer, your internet connection or with the website of the supplier at the moment of registration of your order or payment, contact the supplier as soon as possible in writing. Also, take a screenshot with an indication of the date and hour of the problem (click on the box with the hour on your screen), so that you can prove the problem if any discussions would arise regarding your order or payment.

Do not hesitate to contact me for any question, comment or suggestion. If you need more specific advice from a Belgian lawyer specialised in media law and advertising law, feel free to contact me. I will be glad to be of help!

Author: Bart Van Besien

Finnian & Columba

Belgium

bart@finnian.be

Attorney - Lawyer - Brussels - Belgium - European Union (E.U.)

Specialised in Belgian media law and intellectual property law (copyright, trademarks, patents, domain names, etc.).