May 2022 – Nearly a year has passed since the lapse of the transposition period for the Digital Content Directive and the Sale of Goods Directive, which brought important changes to national consumer protection rules. However, many jurisdictions still have not implemented the Directives.
We are closely monitoring the implementation process in our EU jurisdictions. Below is an overview of the implementation status of the Directives in the remaining EU Member States where Kinstellar operates that have not yet implemented the Directivesand a brief summary of the main changes and the expected country-specific implications for business. In addition, we bring you information from several non-EU countries that have taken inspiration from the Directives and decided to pass national legislative equivalents.
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Bulgaria
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- The legislation implementing the Omnibus Directive in Bulgarian law was promulgated in the Bulgarian State Gazette on 11 March 2022. This means that the Omnibus Directive transposition process is now completed. The Omnibus Directive was implemented by virtue of amendments to the Bulgarian Consumers Protection Act (the “CPA”) which enters into force on 28 May 2022 (except for a few provisions applicable to tourism packages, which entered into force as of 11 March 2022).
- It is important to note that new rules for price reduction in the amended CPA apply to goods as well as to goods that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions, and to services. The amended CPA also introduces the progressive option for price reductions made available in newly introduced Article 6a of the Price Indication Directive.
- The amended CPA contains several deviations to the Omnibus Directive. For instance, a key deviation is that the amended CPA incorporates new rules for turnover-based fines for widespread infringements that apply to a wider range of infringements than envisaged by the Omnibus Directive. For instance, turnover-based fines also apply to widespread infringements of certain obligations relating to the provision of pre-contractual information.
- The amended CPA also specifies certain additional requirements in relation to the obligation for transparency regarding the authenticity of customer reviews. In particular, merchants must now provide information such as indicating whether all reviews have been published, whether they are positive or negative, and whether they have been sponsored or influenced by a contractual relationship with a merchant.
- The Digital Content Directive and the Sale of Goods Directive were transposed into Bulgarian law by the Provision of the Digital Content and Digital Services and Sale of Goods Act, which entered into effect on 1 January 2022. The Act will also apply to contracts for the provision of digital content and/or services concluded prior to its entry into effect, with the exceptions listed in Articles 21 and 22—these provisions provide for the right to modify the provided digital content or digital service and the right of recourse against third parties responsible for the non-provision or non-compliance of digital content or digital services.
- The key new provisions include that the warranty period for the supply of digital content or digital service and goods is two years.
- Additionally, the burden of proof shall be on the seller for a lack of conformity within two years from the time of delivery of goods and from the start of the continuous supply of digital content or digital service.
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Croatia
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- The Omnibus Directive is implemented through the (entirely new) Consumers Protection Act, while the SGD Directive is transposed partially through the Consumers Protection Act and partially through amendments to the Obligations Act. The DCD Directive is transposed through the Act on Certain Aspects of the Agreement of Delivery of Digital Content and Digital Services.
- While the amendments to the Obligations Act and the Act on Certain Aspects of the Agreement on Delivery of Digital Content and Digital Services entered into force on 1 January 2022, the Consumers Protection Act was enacted but will enter into force on 28 May 2022.
- Reversed burden of proof for physical goods is one year from delivery and in cases of continuous supply of goods with digital elements, the period is (a) two years from delivery for a continuous supply during the time period and (b) the entire period of supply in case of a continuous supply for a period exceeding two years.
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Hungary
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- The transposition of the New Deal for Consumers is completed, and the following laws have been implemented: Act LI of 2021 amending Act CLV of 1997 on Consumer Protection, the Civil Code, and Act XLVII of 2008 on the prohibition of Unfair Business-to-Consumer Commercial Practices and Government Decree 373/2021 (VI.30.) on the detailed rules of contracts between consumers and businesses for the sale of goods and the provision of digital content and the provision of digital services.
- The amended legislation becomes effective between 1 January 2022 and 28 May 2022.
- Specific rules have been introduced governing the liability for defects in consumer contracts.
- Introduction of the reversed burden of proof for defects that become apparent within the duration of a contract or within one year after a one-off supply of digital content/digital service.
- Inclusion of two-year warranties for defects in digital content / service contracts.
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Romania
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- In January 2022, two Government Emergency Ordinances transposing DCD (i.e., GEO no. 141/2021 on certain aspects of contracts for the provision of digital content and digital services) and SGD (i.e., GEO no. 140/2021 on certain aspects of contracts for the sale of goods) entered into force. Generally, the GEOs reproduce the rules stipulated in the DCD and SGD.
- Currently, there is a draft of the Government Emergency Ordinance on the Ministry of Economy website for the implementation of the Omnibus Directive. In principal, the proposed draft does not deviate from the rules stipulated in the Directive.
- As a brief example, the percentage of fines imposed in accordance with Article 21 of Regulation (EU) 2017/2394 or for the non-compliance with the measures that have become definitive is up to 4% of the trader's annual turnover. The same percentage is also imposed for infringements that result in the severe and repeated impairment of consumer rights.
- Further, consumer protection is broadened to digital services that consumers do not pay for but involve personal data, such as cloud storage, social communication platforms and email accounts.
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Serbia
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- Serbia adopted a new Law on Consumer Protection (the “Serbian Law on Consumer Protection”) in September 2021, with the aim to ensure overall improvement of consumer protection, as well as to achieve further harmonisation with the EU rules (primarily the Directive on the Alternative Resolution of Consumer Disputes).
- Bearing in mind that the preparation of the draft of the Serbian Law on Consumer Protection was a long process that lasted for several years, the Serbian parliament omitted to transpose the relevant seg ments of the New Deal for Consumers initiative into the text of this law, as it was not concluded at that point in time that the Serbian Law on Consumer Protection should include the new EU rules.
- It remains to be seen whether and how Serbia will further amend its legislative framework in order to align it with the New Deal for Consumers.
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Slovakia
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- Introduction of a consumer digital service contract as a new type of contract under the Civil Code.
- Introduction of specific rules governing the liability for defects in both consumer and business contracts.
- Introduction of the reversed burden of proof for defects for two years from the provision of digital service.
- Inclusion of two-year warranties for defects in consumer digital service contracts.
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Turkey
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- As Turkey is not a member of the EU, it is not obliged to transpose changes made to EU Directives into local laws.
- From the consumer law perspective; on 1 February 2022, the Ministry of Trade amended the Regulation on Commercial Advertisements and Unfair Commercial Practices (the “Regulation“). Within the scope of the amendment:
- The concept of personalised price has been defined, and the requirement has been settled on indicating the current price of the relevant goods or services while ensuring advertisements with personalised prices.
- Unfair commercial practice has been pointed out by the Regulation to ensure the protection of consumers against unfair commercial practices and advertisements during recent developments in the e-commerce sector.
- On 9 March 2022, a legislative proposal (the “Proposal”) on the amendment to the Consumer Protection Law numbered 6502 has been brought to the agenda of the Turkish parliament. The following reasons have been underlined in the preamble of the Proposal regarding the planned amendments:
- to provide more protection for consumers;
- to enable legal remedies for consumers; and
- to ensure that consumers are informed and to broaden the scope of liability for intermediary service providers involved in e-commerce.
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For more information, please contact Lukáš A. Mrázik, Firm-wide Co-Head of Data & Cybersercurity, at .
