Proposition 51K0982

Projet de loi relatif à la protection des consommateurs en cas de vente de biens de consommation.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

March 31, 2004

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

EC Directive consumer protection consumer goods product quality sale

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR VB

Abstained from voting

Ecolo

Contact form ¶

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Discussion ¶

May 27, 2004 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker.

On 19 February 2004, the Court of Justice of the European Communities issued a judgment condemning our country for failing to transpose the Directive on certain aspects of the sale and guarantees of consumer goods, that is, the directive on which this text of law is based.

As a reminder, the Directive should have been transposed into national law by 1 January 2002 at the latest, in order to avoid the Belgian State being prosecuted before the Court of Justice and being condemned to pay a fine.

It has been said that the text we have in front of our eyes today constituted only a formality. However, the draft law goes further than the directive we have to transpose. It now provides for the cumulation of two systems: the one provided by the European directive, namely the obligation of guarantee against any lack of conformity and this for a period of two years or one year for second-hand goods, and the one provided by our Civil Code, namely the legal guarantee of hidden defects.

Maintaining the guarantee for hidden defects beyond the two-year period seems to me somewhat dangerous. In addition to the fact that Belgian law is thus once again going beyond the Community requirement — and it is known, however, that it is rarely appropriate — this cumulative of guarantees risks to disadvantage Belgian companies in comparison with their European competitors who are also active on our market.

Belgian companies will find themselves in a situation of legal uncertainty and will have to bear a heavier guarantee obligation than that of companies in other Member States. As companies are constantly likely to face legal proceedings, they will constitute provisions, which will generate additional costs that will be directly or indirectly reflected on consumers. This could lead to pernicious effects that such consumers will have to endure.

In addition, the European directive that serves canevas is not what can be called a model of the genre: granting the same warranty period for an automobile and a toothbrush, one can do better!

We have, however, been able to exercise our role of legislator on two points: the first, the most important in my opinion, concerns the sector of second-hand goods, a sector that was not consulted, at least on the French-speaking side, when drafting the bill. It would have been very difficult, or even impossible, for these people to comply with certain obligations stipulated in the law. In terms of repair, in case of non-compliance, for example, in addition to the termination of the contract and the price reduction, the project also stipulates that the buyer can request the repair or replacement of the purchased object. This does not seem to me possible for second-hand, as repair would cost nine times out of ten more expensive than the price at which the property was acquired.

In addition, it may also prove impossible simply because spare parts no longer exist. As regards replacement, this is also impossible since the majority of the goods sold by the sector come from individuals.

Furthermore, forcing the opportunity sector to guarantee the goods for one year also does not seem very realistic to me. In fact, it deals with reselling household appliances that are already 3, 4, or 5 years old, or even more. Therefore, giving a one-year guarantee would lead him straight to bankruptcy.

Therefore, I am pleased that we have been able to make a distinction in the bill between new goods and used goods. It would have been more than a shame to penalize this economic sector that is far from being negligible. Thousands of ⁇ and shops live from the commercialization of used goods in the most diverse sectors. This activity responds to a need of consumers, in particular less well-natured, and is consistent with the concern of preserving the environment by enabling the efficient recycling of goods whose life span has not ended. Let us not forget that this activity is also generating jobs, both employed and self-employed.

The next point I would like to address is the date of entry into force of the law. Since nothing was initially planned, I am pleased that a transition period was introduced by amendment before the entry into force of this law. This period could have been extended beyond four months. I understand that the Belgian State risks being condemned to a penalty by the Court of Justice of the European Communities if it does not transpose the directive as soon as possible, but this is also not a reason to penalize companies. The latter will have to adapt their warranty certificates, their delivery and repair vouchers, their catalogs and their invoices, their general conditions of sale, etc.

This will also be the case for documents relating to goods that they will have in stock at the time of entry into force of the new regulation. They should also be able to take into account these new guarantee obligations in their negotiations with their suppliers. Therefore, a four-month period really represents an indispensable minimum; in my opinion, a six-month period would have been more appropriate. And if we wanted to tend to perfection, we might have had to follow the advice of our colleague Pierre Lano who advised to wait for the next release of the catalog in order to avoid unnecessary paper deployment within a few months.

Nevertheless, despite the few imperfections of this text, and in order not to harm the consumer with regard to the minimum standards of guarantees granted, we will vote in favour of the bill presented to us today.

Mr. Lano, would you like to join this debate? (Yes) Now you can no longer say that you speak little and therefore need to have more speech time. You have the word.

Mr. Speaker, Mrs. Minister, this time I will not be opposed, but sometimes one must dare to say his thought.

On the present bill of law supplementing the provisions of the Civil Code on sales in order to protect consumers, a lot of ink has already been flooded. Already in the previous legislature, under the authority of Minister Verwilghen, the first steps have been taken to transpose the directive. The planned intentions were deliberate and aimed at transposing the Directive correctly and as quickly as possible. Personally, in the previous legislature, I also advocated that the present bill should be approved before the end of the legislature so that we would remain within the statutory transposition deadline. Unfortunately, we have not succeeded in this. We have addressed the subject in the Committee on Financial and Economic Law, but the time was apparently not yet ripe to reach a consensus. This has now happened, thanks to you and your collaborators, Mrs. Ministers.

About a year later, we reached a unanimous agreement in the Business Committee. The problem was thoroughly studied and various organizations and interest groups were consulted. The result can therefore be experienced as positive, especially when it comes to consumer interests.

This draft law — the previous speaker has already said it — has introduced a new section on sales to consumers in the Civil Code. In this, the lack of conformity of a sold item is well stimulated and determines which conditions the seller must meet in the event of a defect. Thus, the seller remains responsible within two years from the delivery. When determining a lack of conformity, the consumer may in a number of cases either demand the repair or replacement of the good, or benefit from a price reduction or a dissolution of the purchase. After this period, however, existing provisions concerning the guarantee for hidden defects of the goods sold remain in force. In legal terms, this is called the regression claim.

The Directive allows the exercise of the listed rights, without prejudice to other rights determined nationally.

As I mentioned earlier, the law has come in the interest of the consumer. Nevertheless, we must not forget that the provisions will also have a strong, even determining, impact on business. All parties concerned agree on the extensive consequences. After all, the draft law really touches the essence of the buying-selling relationship. Both the industrial sector and the distribution sector are faced with this. Moreover, the impact is not merely of a commercial legal nature. Also in terms of administration, it leads to adjustments in the offers, contracts, invoices, and so on.

This inevitably involves additional financial costs. Therefore, we are eager to establish a transitional period as much as possible, during which numerous companies will have the opportunity to settle in time. That was also desirable. In the end, all parties — colleagues, I would say all parties — were able to find themselves within a four-month period. It would be inappropriate to give companies not enough time to reorganize themselves.

Despite the fact that many companies even give the good example and include a contractual liability clause in their sales contract with a period that is usually longer than the draft law intends, it will still be necessary to consider carefully what evolution the new provision will undergo. However, let us not forget to make it clear that the law cannot provide for all situations.

The bill contains a number of vagues for the industry, for the distribution and for the second-hand sector, which can give rise to legal actions. Our group wanted to remedy this by clarifying the provisions. However, we were convinced by the arguments of the Minister. Given the complexity of the matter, it seemed better not to be too restrictive, so that the consumer in the justified situations can bring legal action against the seller through the judiciary. If subsequently it turns out that a particular jurisprudence does not correspond to the meaning of this legal provision, we will be prepared to take steps to correct the necessary, as the law, by the way, stipulates.

The purpose of the European Directive was to provide equivalent protection to consumers, primarily in Europe. This bill largely meets this objective and therefore the VLD will approve it.

Mr. Speaker, whether it’s a car, a steel or a balloon, everyone expects these products to comply with what they stand for. Nothing is so annoying as finding out that your new CD player does not do it after two months and not know the way with the burden of evidence resting on your shoulders and causing you to prove yourself that that CD player was not manufactured properly.

If you wish, this evil will be removed from the world today. With this bill, every consumer gets a two-year legal warranty on every product he buys. Furthermore, the burden of proof lies with the seller for six months; he must prove that the product was good at the time of delivery. Therefore, the buyer no longer has to prove that the product was not good.

Also for the seller, this law provides more security. He knows what to stick to. The seller is granted the right to complain himself with the supplier if it is about products delivered to him in poor condition. Where the cause lies, the consequences must be borne.

The consumer has more action opportunities, more opportunities if he finds that his product does not meet the requirements he is reasonably entitled to make. The price reduction or the termination of the agreement already existed. Today there is the replacement or repair of the good. This offers new possibilities.

I wens de commissieleden te bedanken voor de constructive opmerkingen, waardoor onder meer werd besloten dat de regeling no ingaat four months na de publicatie in het Staatsblad. In this way, all traders can adapt to new regulations. De Meyer has ervoor gezorgd dat voor tweedehandsgoederen heel clear wordt bepaald dat ze uiteraard niet onder dezelfde regels vallen omdat de aard van het goed in rekening moet worden gebracht bij het bepalen van het het al dan niet in overeenstemming zijn van de verwachte kenmerken. This reform is very important for consumers but also for society. In this year of the bicentennial of the Civil Code, this reform takes an even more special scale. In fact, the rules of the Civil Code in matters of guarantees have remained unchanged for 200 years and even more if one considers that in matters of guarantee, the Civil Code has taken back the rules of the old law. This project that is submitted to you today is part of the will of the fathers of the Civil Code, which was to engage society in modernity, a society that responds to the concerns of the citizen.