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Belgian Code of Economic Law - Book VI - Distance contracts (unofficial consolidated translation)

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This document contains the legal provisions in relation to B2C e-commerce under Belgian law (to be read together with Book XII).

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Belgian Code of Economic Law - Book VI - Distance contracts (unofficial consolidated translation)

  1. 1. 1 Belgian Code of Economic Law – Book VI. Distance Contracts Unofficial English translation – Consolidated version1 Translated by Johan Vandendriessche and Isaure de Villenfagne2 * * * This document provides a consolidated translation of the relevant extracts of the Code of Economic Law (general definitions, the relevant specific definitions applicable to Book VI and the relevant chapters of Book VI). Arrangement of chapters Code of Economic Law * * * Book I – Definitions Title 1 – General Definitions Article I.1 Title 2 – Definitions specific to certain Books Chapter 4 – Definitions specific to Book VI. Article I.8 * * * Book VI – Market practices and consumer protection Title 3 – Agreements with consumers Chapter 2 – Distance contracts Section 1 – Distance contracts that do not relate to financial services Article VI.45-53 Section 2 – Distance contracts that relate to financial services Article VI.54-61 Section 3 – Provisions applicable to this chapter Article VI.62-63 * * * 1 This version is consolidated to 17 August 2017. Bibliographical information can be found at the end of this document. 2 Johan Vandendriessche is a lawyer at the Bar of Brussels (Erkelens Law – www.erkelenslaw.com) and a Visiting Professor in ICT Law at the University of Ghent (UGent) and at the HoWest University of Applied Sciences. Isaure de Villenfagne is a lawyer at the Bar of Brussels (Erkelens Law – www.erkelenslaw.com) The authors will appreciate receiving comments or remarks in view of improving this translation at the following address: johan.vandendriessche@erkelenslaw.com and Isaure.de.villenfagne@erkelenslaw.com.
  2. 2. 2 Book I – Definitions Title 1 – General Definitions Article I.1. Except otherwise provided in title 2, for the purposes of this Code the following terms shall bear the following meanings: 1° company: any natural or legal person pursuing an economic goal in a durable manner, as well as its associations; 2° consumer: any natural person who acts for purposes that are outside his trade, business, craft or profession; 3° Minister: the Minister competent for Economy; 4° products: goods and services, real estate, rights and obligations; 5° service: any performance realised by a company in the context of its professional activity or in the performance of its corporate purpose; 6° goods: tangible movable items; 7° code of conduct: an agreement or a set of provisions, that are not prescribed by law, regulation or administrative provisions, establishing how companies that adhere to the code should behave in relation to one or more trade practices or economic sectors; 8° member state: a member state of the European Union or, insofar as provided in the treaty on the European Economic Area, a state who has signed this treaty; 9° business days: all calendar days, except Sundays and public holidays. If a deadline, that is expressed in business days, expires on a Saturday, it shall be prolonged until the next business day; 10° address: a geographical address and, as the case may be, the electronic address; 11° electronic address: a set of electronic data enabling a person to be contacted by electronic means; 12° geographical address: a set of geographical data including, as the case may be, the house number, the street name, the postal code and the municipality where a person has an establishment or where he may be contacted; 13° FPS Economy: the Federal Public Service Economy, SMEs, Self-employed and Energy. The first subparagraph, 1°, 4°, 5° and 8°, do not apply to Book XI. Title 2 – Definitions specific to certain Books Chapter 4 – Definitions specific to Book VI Article I.8. For the purpose of Book VI, the following terms shall bear the following meanings: […] 13° advertising: Any communication with the direct or indirect aim to promote the sale of goods irrespective of the place or communication means. […] 15° distance contract: any contract concluded between a company and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the company and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded; 16° means of distance communication: any means which, without the simultaneous physical presence of the company and the consumer, may be used for the conclusion of a contract between those parties. 17° Operator of a means of communication: any public or private natural or legal person whose professional activity involves making one or more means of distance communication available to suppliers 18° financial service: any service of a banking, credit, insurance, personal pension, investment or payment nature; 19° durable medium: any instrument which enables the consumer or the company to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored; 20° supplier : any company who is the contractual provider of services subject to distance contracts; […] 30° goods made to the consumer’s specifications: non- prefabricated goods made on the basis of an individual choice of or decision by the consumer;
  3. 3. 3 […] 33° sales contract: any contract under which the company transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services; 34° contrat de service: tout contrat autre qu'un contrat de vente en vertu duquel l'entreprise fournit ou s'engage à fournir un service au consommateur et le consommateur paie ou s'engage à payer le prix de celui-ci; 35° digital content: data which are produced and supplied in digital form; 36° public auction: a method of sale where goods or services are offered by the company to consumers, who attend or are given the possibility to attend the auction in person, through a transparent, competitive bidding procedure run by a ministerial officer charged with the public auction activities and where the successful bidder is bound to purchase the goods or services; 37° commercial guarantee: any undertaking by the company or a producer (the guarantor) to the consumer, in addition to his legal obligation relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract; 38° ancillary contract: a contract by which the consumer acquires goods or services related to a contract and where those goods are supplied or those services are provided by the company or by a third party on the basis of an arrangement between that third party and the company. * * *
  4. 4. 4 Book VI – Market practices and consumer protection Title 3 – Agreements with consumers Chapter 2 – Distance contracts Section 1 - Distance contracts that do not relate to financial services Article VI.45. §1. Before the consumer is bound by a distance contract, the company shall provide the consumer with the following information in a clear and comprehensible manner: 1° the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services; 2° the identity of the company, such as his company number, trading name; 3° the geographical address at which the company is established and the company’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the company quickly and communicate with him efficiently and, where applicable, the geographical address and identity of the company on whose behalf he is acting; 4° if different from the address provided in accordance with point 3°, the geographical address of the place of business of the company, and, where applicable, that of the company on whose behalf he is acting, where the consumer can address any complaints; 5° the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided; 6° the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate; 7° the arrangements for payment, delivery, performance, the time by which the company undertakes to deliver the goods or to perform the services and, where applicable, the company’s complaint handling policy; 8° where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Article VI.49, §1, as well as the model withdrawal form set out in Annex 2 to this Book; 9° where applicable, that the consumer will have to bear the cost of returning the goods in case of withdrawal and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods; 10° that, if the consumer exercises the right of withdrawal after having made a request in accordance with Article VI.46, §8, the consumer shall be liable to pay the company reasonable costs in accordance with Article VI.51, §3; 11° where a right of withdrawal is not provided for in accordance with Article VI.53, 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; 12° a reminder of the existence of a legal guarantee of conformity for goods; 13° where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees; 14° where applicable, the existence of relevant codes of conduct and how copies of them can be obtained; 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° where applicable, the minimum duration of the consumer’s obligations under the contract;
  5. 5. 5 17° where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the company; 18° where applicable, the functionality, including applicable technical protection measures, of digital content; 19° where applicable, any relevant interoperability of digital content with hardware and software that the company is aware of or can reasonably be expected to have been aware of; 20° where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the company is subject, and the methods for having access to it. §2. In the case of a public auction, the information referred to in points 2°, 3° and 4° of paragraph 1 may be replaced by the equivalent details for the ministerial official charged with the public auction activities. §3. The information referred to in points 8°, 9° and 10° of paragraph 1 may be provided by means of the model instructions on withdrawal set out in Annex 1 to this Book. The company shall have fulfilled the information requirements laid down in points 8°, 9° and 10° of paragraph 1 if he has supplied these instructions to the consumer, correctly filled in. §4. The information referred to in paragraph 1 shall form an integral part of the distance contract and shall not be altered unless the contracting parties expressly agree otherwise. §5. If the company has not complied with the information requirements on additional charges or other costs as referred to in point 5° of paragraph 1, or on the costs of returning the goods as referred to in point 9° of paragraph 1, the consumer shall not bear those charges or costs. §6. As regards compliance with the information requirements laid down in this Article, the burden of proof shall be on the company. Article VI.46. §1. The company shall give the information provided for in Article VI.45, §1 or make that information available to the consumer in a way appropriate to the means of distance communication used in plain and intelligible language. In so far as that information is provided on a durable medium, it shall be legible. §2. If a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the company shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the information provided for in points 1°, 5°, 15° and 16° of Article VI.45, §1. The company shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. If placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the company. If the company has not complied with this subparagraph, the consumer shall not be bound by the contract or order. §3. Trading websites shall indicate clearly and legibly at the latest at the beginning of the ordering process whether any delivery restrictions apply and which means of payment are accepted. §4. If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the company shall provide, on that particular means prior to the conclusion of such a contract, at least the pre-contractual information regarding the main characteristics of the goods or services, the identity of the company, the total price, the right of withdrawal, the duration of the contract and, if the contract is of indeterminate duration, the conditions for terminating the contract, as referred to in points 1°, 2°, 5°, 8° and 15° of Article VI.45, §1. The other information referred to in Article VI.45, §1 shall be provided by the company to the consumer in an appropriate way in accordance with paragraph 1 of this Article. §5. Without prejudice to paragraph 4, if the company makes a telephone call to the consumer with a view to concluding a distance contract, he shall, at the beginning of the conversation with the consumer, disclose his identity and, where applicable, the identity of the person on whose behalf he makes that call, and the commercial purpose of the call. § 6. Where a distance contract is to be concluded by telephone, the King may provide, for the sectors of professional activity or for the categories of products that he shall designate, that the company has to confirm the offer to the consumer who is bound only once he has signed the offer or has sent his written consent. Such confirmations may, where applicable, be made on a durable medium.
  6. 6. 6 § 7. The company shall provide the consumer with the confirmation of the contract concluded, on a durable medium within a reasonable time after the conclusion of the distance contract, and at the latest at the time of the delivery of the goods or before the performance of the service begins. That confirmation shall include: a) all the information referred to in Article VI.45, §1, unless the company has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract; and b) where applicable, the confirmation of the consumer’s prior express consent and acknowledgment in accordance with point 13° of Article VI.53. § 8. Where a consumer wants the performance of services, or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, to begin during the withdrawal period provided for in Article VI.47, §2, the company shall require that the consumer make an express request. Article VI.47. § 1. Without prejudice to Article VI.53, the consumer shall have a period of 14 days to withdraw from a distance contract, without giving any reason, and without incurring any costs other than those provided for in Article VI.50, §2 and Article VI.51. §2. Without prejudice to Article VI.48, the withdrawal period referred to in paragraph 1 shall expire after 14 days from: 1° in the case of service contracts, the day of the conclusion of the contract; 2° in the case of sales contracts, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods or: c) in the case of multiple goods ordered by the consumer in one order and delivered separately, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last good; d) in the case of delivery of a good consisting of multiple lots or pieces, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last lot or piece; e) in the case of contracts for regular delivery of goods during defined period of time, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the first good; 3° in the case of contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating, the day of the conclusion of the contract. Article VI.48. If the company has not provided the consumer with the information on the right of withdrawal as required by point 8° of Article VI.45, §1, the withdrawal period shall expire 12 months from the end of the initial withdrawal period, as determined in accordance with Article VI.47, §2. If the company has provided the consumer with the information provided for in subparagraph 1 of this Article within 12 months from the day referred to in Article VI.47, §2, the withdrawal period shall expire 14 days after the day upon which the consumer receives that information. Article VI.49. §1. Before the expiry of the withdrawal period, the consumer shall inform the company of his decision to withdraw from the contract. For this purpose, the consumer may either: 1° use the model withdrawal form as set out in Annex 2 to this Book; or 2° make any other unequivocal statement setting out his decision to withdraw from the contract. §2. The consumer shall have exercised his right of withdrawal within the withdrawal period referred to in Article VI.47, §2 and Article VI.48 if the communication concerning the exercise of the right of withdrawal is sent by the consumer before that period has expired. §3. The company may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to electronically fill in and submit either the model withdrawal form set out in Annex 2 to this Book or any other unequivocal statement on the company’s website. In those cases the company shall communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay.
  7. 7. 7 §4. The burden of proof of exercising the right of withdrawal in accordance with this Article shall be on the consumer. Article VI.50. §1. The company shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract in accordance with Article VI.49. The company shall carry out the reimbursement referred to in the first subparagraph using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement. §2. Notwithstanding paragraph 1, the company shall not be required to reimburse the supplementary costs, if the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by the company. §3. Unless the company has offered to collect the goods himself, with regard to sales contracts, the company may withhold the reimbursement until he has received the goods back, or until the consumer has supplied evidence of having sent back the goods, whichever is the earliest. Article VI.51. §1. Unless the company has offered to collect the goods himself, the consumer shall send back the goods or hand them over to the company or to a person authorised by the company to receive the goods, without undue delay and in any event not later than 14 days from the day on which he has communicated his decision to withdraw from the contract to the company in accordance with Article VI.49. The deadline shall be met if the consumer sends back the goods before the period of 14 days has expired. The consumer shall only bear the direct cost of returning the goods unless the company has agreed to bear them or the company failed to inform the consumer that the consumer has to bear them. §2. The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer shall in any event not be liable for diminished value of the goods where the company has failed to provide notice of the right of withdrawal in accordance with point (h) of Article VI.45, §1. §3. Where a consumer exercises the right of withdrawal after having made a request in accordance with Article VI.46, §8, the consumer shall pay to the company an amount which is in proportion to what has been provided until the time the consumer has informed the company of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by the consumer to the company shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be calculated on the basis of the market value of what has been provided. §4. The consumer shall bear no cost for: 1° the performance of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, in full or in part, during the withdrawal period, where: a) the company has failed to provide information in accordance with points 8° or 10° of Article VI.45, §1; or b) the consumer has not expressly requested performance to begin during the withdrawal period in accordance with Article VI.46, §8; or 2° the supply, in full or in part, of digital content which is not supplied on a tangible medium where: a) the consumer has not given his prior express consent to the beginning of the performance before the end of the 14-day period referred to in Article VI.47; b) the consumer has not acknowledged that he loses his right of withdrawal when giving his consent; or c) the company has failed to provide confirmation in accordance with Article VI.46, §7. §5. Except as provided for in Article VI.50, §2 and in this Article, the consumer shall not incur any liability as a consequence of the exercise of the right of withdrawal.
  8. 8. 8 Article VI.52. §1. The exercise of the right of withdrawal shall terminate the obligations of the parties: 1° to perform the distance contract; or 2° to conclude the distance contract, in cases where an offer was made by the consumer. §2. Without prejudice to Article VII.92 first and second subparagraph, if the consumer exercises his right of withdrawal from a distance contract in accordance with Articles VI.47 to VI.52, §1, any ancillary contracts shall be automatically terminated, without any costs for the consumer, except as provided for in Article VI.50, §2 and in Article VI.51. Article VI.53. The consumer may not exercise the right of withdrawal provided in Article VI.47 in respect of distance contracts as regards the following: 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 company; 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 company 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 and were unsealed after delivery; 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 at the time of the conclusion of the sales contract, the delivery of which can only take place after 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the company; 8° contracts where the consumer has specifically requested a visit from the company for the purpose of carrying out urgent repairs or maintenance. If, on the occasion of such visit, the company 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 thereby loses his right of withdrawal. 14° contracts for services for contests and lotteries. Section 2 – Distance contracts relating to financial services Article VI.54. In the case of contracts for financial services comprising an initial service agreement followed by successive operations or a series of separate operations of the same nature performed over time, the provisions of this Section shall apply only to the initial agreement. In case there is no initial service agreement but the successive operations or the separate operations of the same nature performed over time are performed between the same contractual parties, Articles VI.55 and VI.56 apply only when the first operation is performed. Where, however, no operation of the same nature is performed for more than one year, the next operation will be deemed to be the first in a new series of operations and, accordingly, Articles VI.55 and VI.56 shall apply.
  9. 9. 9 Article VI.55. §1. In good time before the consumer is bound by any contract or offer, he must be informed unambiguously, in a clear and comprehensible manner, and by all means adapted of distance communication used, with at least the following information concerning: 1° the supplier a) the identity of the supplier, including his company number, and his main business activity, his geographical address at which the supplier is established and any other geographical address relevant for the consumer's relations with the supplier; b) the identity of the representative of the supplier established in the consumer's member state of residence and the geographical address relevant for the customer's relations with the representative, if such a representative exists; c) if the consumer deals with any company other than the supplier, the identity of this company, the capacity in which he/she is acting vis-à-vis the consumer, and the geographical address relevant for the consumer’s relations with this company; d) where the supplier's activity and/or the activity of the other company with whom the consumer has dealings is subject to an authorisation scheme, the contact details of the relevant supervisory authority; 2° the financial service a) a description of the main characteristics of the financial service; b) the total price to be paid by the consumer to the supplier for the financial service, including all related fees, charges and expenses, and all taxes paid via the supplier or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it; c) where relevant, notice indicating that the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the supplier's control and that historical performances are no indicators for future performances; d) notice of the possibility that other taxes and/or costs may exist that are not paid via the supplier or imposed by him; e) any limitations of the period for which the information provided is valid; f) the arrangements for payment and for performance; g) any specific additional cost for the consumer of using the means of distance communication, if such additional cost is charged; 3° the distance contract a) the existence or absence of a right of withdrawal in accordance with Article VI.58 and, where the right of withdrawal exists, its duration and the conditions for exercising it, including information on the amount which the consumer may be required to pay on the basis of Article VI.59, §1, as well as the consequences of non-exercise of that right; b) the minimum duration of the distance contract in the case of financial services to be performed permanently or recurrently; c) information on any rights the parties may have to terminate the contract early or unilaterally by virtue of the terms of the distance contract, including any exit fees imposed by the contract in such cases; d) practical instructions for exercising the right of withdrawal indicating, inter alia, the address to which the notification of a withdrawal should be sent; e) the laws that are applied by the supplier as a basis for the establishment of relations with the consumer prior to the conclusion of the distance contract; f) any contractual clause on law applicable to the distance contract and/or on competent court; g) in which language, or languages, the contractual terms and conditions, and the prior information referred to in this Article are supplied, and furthermore in which language, or languages, the supplier, with the agreement of the consumer, undertakes to communicate during the duration of this distance contract;
  10. 10. 10 4° redress a) whether or not there is an out-of-court complaint and redress mechanism for the consumer that is party to the distance contract and, if so, the methods for having access to it; b) the existence of guarantee funds or other compensation arrangements, not covered by the Act of 22 March 1993 on the legal status and supervision of credit institutions and by the Act of 17 December 1998 creating a guarantee fund for deposits and financial instruments3. The commercial purpose of this information must be be made explicitly clear. §2. Information on contractual obligations, to be communicated to the consumer during the pre- contractual phase, shall be in conformity with the contractual obligations which would result from the law presumed to be applicable to the distance contract if the latter were concluded. Article VI.56. In the case of voice telephony communications the identity of the supplier and the commercial purpose of the call initiated by the supplier shall be made explicitly clear at the beginning of any conversation with the consumer. Subject to the explicit consent of the consumer only the following information needs to be given: a) the identity of the person in contact with the consumer and his link with the supplier, b) a description of the main characteristics of the financial service, c) the total price to be paid by the consumer to the supplier for the financial service including all taxes paid via the supplier or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it, d) notice of the possibility that other taxes and/or costs may exist that are not paid via the supplier or imposed by him, e) the existence or absence of a right of withdrawal in accordance with Article VI.58 and, where the right of withdrawal exists, its duration and the conditions for exercising it, including information on the amount which the consumer may be required to pay on the basis of Article VI.59, §1, as well as the consequences of non-exercise of that right. The supplier shall inform the consumer that other information is available on request and of what nature this information is. In any case the supplier shall provide the full information when he fulfils his obligations under Article VI.57. Article VI.57. §1. The supplier shall communicate to the consumer all the contractual terms and conditions and the information referred to in VI.55, §1 on paper or on another durable medium available and accessible to the consumer in good time before the consumer is bound by any distance contract or offer. §2. The supplier shall fulfil his obligation under paragraph 1 immediately after the conclusion of the contract, if the contract has been concluded at the consumer's request using a means of distance communication which does not enable providing the contractual terms and conditions and the information in conformity with paragraph 1. §3. At any time during the contractual relationship the consumer is entitled, at his request, to receive the contractual terms and conditions on paper. In addition, the consumer is entitled to change the means of distance communication used, unless this is incompatible with the contract concluded or the nature of the financial service provided. Article VI.58. §1. The consumer shall have a period of at least 14 calendar days to withdraw from the distance contract with regards to a financial service. He may exercise this right without penalty and without giving any reason. The period for withdrawal shall begin: a) either from the day of the conclusion of the distance contract, or b) from the day on which the consumer receives the contractual terms and conditions and the information in accordance with Article VI.57, §1 or §2, if that is later than the date referred to in the first indent. 3 The Act of 22 March 1993 on the legal status and supervision of credit institutions has been repealed by the Act of 25 April 2014 on the legal status and supervision of credit institutions and investment firms (Belgian State Gazette of 7 May 2014). The references in article VI.55 should be read as a reference to the new Acts.
  11. 11. 11 The deadline shall be deemed to have been observed if the notification, if it is on paper or on another durable medium available and accessible to the recipient, is dispatched before the deadline expires. §2. The right of withdrawal shall not apply to: 1° financial services whose price depends on fluctuations in the financial market outside the supplier’s control, which may occur during the withdrawal period, such as services related to: - foreign exchange, - money market instruments, - transferable securities, - units in collective investment undertakings, - financial-futures contracts (“futures”), including equivalent cash settled instruments, - forward interest-rate agreements (“FRA’s”), - interest-rate, currency and equity swaps, - options to acquire or dispose of any instruments referred to in this point including equivalent cash settled instruments. This category includes in particular options on currency and on interest rates; 2° contracts whose performance has been fully completed by both parties at the consumer's express request before the consumer exercises his right of withdrawal; 3° mortgage credit agreements which are subject to Book VII, Title 4, Chapter 2. §3. If to a distance contract of a given financial service another distance contract has been attached concerning services provided by the supplier or by a third party on the basis of an agreement between the third party and the supplier, this additional distance contract shall be cancelled, without any penalty, if the consumer exercises his right of withdrawal as provided for in paragraph 1. Article VI.59. §1. During the withdrawal period, the performance of the contract may only be commenced after the consent of the consumer. When the consumer exercises his right of withdrawal under Article VI.58, §1, he may only be required to pay, without any undue delay, for the service actually provided by the supplier in accordance with the contract. The performance of the contract may only begin after the consumer has given his approval. The amount payable shall not: - exceed an amount which is in proportion to the extent of the service already provided in comparison with the full coverage of the distance contract, - in any case be such that it could be construed as a penalty. §2. The supplier may not require the consumer to pay any amount on the basis of paragraph 1 unless he can prove that the consumer was duly informed about the amount payable, in conformity with Article VI.55, §1, 3°, a. However, in no case may he require such payment if he has commenced the performance of the contract before the expiry of the withdrawal period provided for in Article VI.58, §1 without the consumer's prior request. §3. The supplier shall, without any undue delay and no later than within 30 calendar days, return to the consumer any sums he has received from him in accordance with the distance contract, except for the amount referred to in paragraph 1. This period shall begin from the day on which the supplier receives the notification of withdrawal. §4. The consumer shall return to the supplier any sums and/or property he has received from the supplier without any undue delay and no later than within 30 calendar days. This period shall begin from the day on which the consumer dispatches the notification of withdrawal. Article VI.60. § 1. The supplier is liable vis-à-vis the consumer for complying with the obligations resulting from the Articles VI.55 to VI.57. § 2. In case of non-compliance with the obligation resulting from the Articles VI.55, § 1, 2° and 3°, VI.56 and VI.57, the consumer may terminate the distance contract, without charge and without penalty, by means of a reasoned document sent by registered letter, within a reasonable period from the moment when he had knowledge or should have had knowledge of the infringed obligation.
  12. 12. 12 Article VI.61. The shipment of products and titles representing services shall always be at the risk of the person that has contracted with the consumer. Section 3 – Common provisions for this Chapter Article VI.62. As regards compliance with the information requirements vis-à-vis the consumer, the compliance with deadlines, the consent of the consumer to conclude the agreement and, where applicable, with the performance thereof during the withdrawal period, the burden of proof shall be on the company. Article VI.63. The clauses and conditions, or the combinations of clauses and conditions, that serve to place the burden of proof in relation to the compliance with all or part of the obligations described in this Chapter binding on the company and, in case of distance contracts in relation to financial services, on the supplier, are prohibited and null and void. Any clause whereby the consumer waives the advantage of the rights that are granted to him by this Chapter shall be deemed non-written. Any clause that declares the law of a country which is not a member state applicable, is prohibited and null and void in relation to the matters governed by this Chapter where, in the absence of such a clause, the law of a member state would be applicable and where that law would offer the consumers a higher protection in the aforementioned matters. * * *
  13. 13. 13 Bibliographical information4 Act of 14 July 1991 on trade practices and on the information and protection of consumers (Belgian State Gazette of 29 August 1991). Act of 25 May 1999 modifying the act of 14 July 1991 on trade practices and on the information and protection of consumers (Belgian State Gazette of 23 June 1999). Act of 24 August 2005 implementing miscellaneous provisions of the directive financial services at a distance and of the directive privacy in electronic communication (Belgian State Gazette of 31 August 2005). Act of 5 June 2007 modifying the act of 14 July 1991 on trade practices and on the information and protection of consumers (Belgian State Gazette of 21 June 2007). Act of 10 December 2009 concerning payment services (Belgian State Gazette of 15 January 2010). Act of 6 April 2010 on market practices and consumer protection (Belgian State Gazette of 12 April 2010) Act of 21 December 2013 implementing Book VI “Market Practices and consumer protection” in het Code of Economic Law and implementing the definitions specific to Book VI, and the enforcement measures specific to Book VI in the Books I and XV of the Code of Economic Law (Belgian State Gazette of 30 December 2013). Act of 2 April 2014 implementing Book X “Commercial agency agreements, commercial cooperation agreements and exclusive distributorship agreements” in het Code of Economic Law and implementing the definitions specific to Book X in Book I of the Code of Economic Law (Belgian State Gazette of 28 April 2014). Act of 19 April 2014 implementing Book VII “Payment and credit services” in het Code of Economic Law and implementing the definitions specific to Book VII, and the enforcement measures specific to Book VII in the Books I and XV of the Code of Economic Law (Belgian State Gazette of 28 May 2014). Act of 25 October 2016 concerning the access to investment services companies and concerning the legal status and the supervision on companies for asset management and investment advice (Belgian State Gazette of 18 November 2016). * * * An official German translation of the Act of 28 February 2013 introducing the Code of Economic Law was published in the Belgian State Gazette of 19 June 2013. It contains, amongst others, a translation of Book VI of the Code of Economic Law. This text can be also consulted on the website of the Central Service for German Translation – Commission for German legal terminology (Ministry of Internal Affairs) (http://www.scta.be/MalmedyUebersetzungen/downloads/20130228_CodeDroitEconomique.docx). The published text is an unofficial version. It is important to check the consolidation date. 4 This chapter provides an overview of the acts that are incorporated in this consolidated version. Reference is made to the official title of the act and its publication date.

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