Notities consumentenrecht finaal (1).pdf

## Consumer Law in the EU This study guide provides a comprehensive overview of consumer law within the European Union, focusing on the principles of consumer protection, harmonization efforts, and the practical application of relevant legislation. ### Consumer law in the Belgian Code of Economic Law (WER) The Belgian Code of Economic Law (WER) is the primary legislative framework for consumer protection in Belgium. It incorporates various European directives and regulations to ensure a harmonized and high level of consumer protection across the Union. #### Harmonization of EU Law * Most consumer protection rules stem from EU directives, which are then transposed into national law. Book VI of the WER largely reflects harmonized EU legislation, previously found in the 1991 Law on Commercial Practices and the 2010 Law on Market Practices. [ ] [6](#page=6). * However, certain consumer protection rules, such as those concerning the legal guarantee for goods, are not integrated into Book VI WER but remain in the old Civil Code (currently being updated to Book 7 of the Civil Code). [ ] [6](#page=6). * Book XIX of the WER addresses consumer debt collection and is an example of non-harmonized legislation, meaning it does not apply to consumers in other member states. [ ] [6](#page=6). * The Court of Justice of the European Union (CJEU) plays a crucial role in interpreting EU directives, with national courts referring preliminary questions to the CJEU for clarification. [ ] [6](#page=6). * EU guidance, provided by the European Commission and national economic inspectorates, offers interpretations of regulations but is not legally binding. National authorities, however, use this guidance in their enforcement activities. [ ] [7](#page=7). #### High Level of Protection * The EU harmonizes consumer law for two primary objectives: 1. **Realization of the Internal Market (Article 114 TFEU):** Harmonization facilitates easier cross-border trade for businesses and ensures consistent consumer protection across member states, fostering consumer confidence. [ ] [7](#page=7). 2. **Protection of Consumers' Economic Interests (Article 169 TFEU):** This aims to establish a high level of protection for consumers in their dealings with businesses, prioritizing their safety, health, and economic well-being. [ ] [8](#page=8). * **Maximum Harmonization:** This approach aims to create a fully integrated internal market by setting uniform rules, allowing no additional national protection measures. [ ] [8](#page=8). * **Minimum Harmonization:** This approach sets a baseline level of protection, permitting member states to introduce additional, more stringent measures. However, these must be compatible with the free movement of goods and services. [ ] [8](#page=8). * **Enforcement Challenges:** While rights are codified, effective enforcement can be difficult for consumers, especially for low-value claims, due to the costs and complexity of legal proceedings. Alternative dispute resolution mechanisms and collective actions by consumer organizations are potential solutions. [ ] [8](#page=8). #### Harmonization Levels * **Minimum Harmonization:** Allows member states to provide additional consumer protection, provided these measures are compatible with EU law and do not unduly restrict the free movement of goods and services. Such restrictions are permissible if they pursue a legitimate public interest objective, are pertinent, and are proportionate. [ ] [9](#page=9). * **Maximum Harmonization:** Precludes member states from introducing additional consumer protection measures beyond those stipulated in the directive. Deviations are only allowed if explicitly permitted by the directive itself. [ ] [10](#page=10). * The EU legislator often includes options for member states within maximum harmonization directives, allowing for some degree of national variation. [ ] [12](#page=12). * Sanctions for non-compliance are often left to member states but must be effective, dissuasive, and proportionate. [ ] [13](#page=13). ### Consumer Law in the Belgian Code of Economic Law (WER) - Concepts and Scope * **Dual Objectives of Book VI WER:** The regulations in Book VI aim to protect consumers and ensure fair competition. [ ] [15](#page=15). * **Book XIX WER:** Covers debt collection practices affecting consumers. [ ] [15](#page=15). * **Historical Context of Book XIV WER:** Previously addressed the relationship between consumers and liberal professions (e.g., notaries, lawyers). This book has been repealed, and liberal professions are now generally treated as "undertakings" under Book VI. [ ] [15](#page=15). * **Key Definitions (Book I WER):** The application of Book VI requires understanding specific definitions: * **Products:** Defined broadly in Article I.8, 47° WER for the purposes of Book VI, encompassing goods, services, rights, obligations, and digital content/services. [ ] [16](#page=16). * **Goods:** Defined in Article I.1, 6° WER as tangible movable property, including gas, water, and electricity. [ ] [16](#page=16). * **Services:** Defined in Article I.1, 5° WER as any performance provided in the framework of a professional activity or statutory objective. This includes digital services. [ ] [17](#page=17). * **Undertaking (Enterprise):** Defined in Article I.8, 39° WER and Article I.22/1, 4° WER. This definition is crucial for determining the scope of consumer protection rules. [ ] [16](#page=16). * **Consumer:** Defined in Article I.1, 2° WER as any natural person acting for purposes outside their trade, business, craft, or profession. This definition is identical to that in the Civil Code. [ ] [21](#page=21). #### Specific Definitions * **Service:** Includes digital services and financial services. Financial services have specific regulations, but general consumer protection rules from Book VI WER may also apply cumulatively. [ ] [17](#page=17). * **Goods:** Generally refers to tangible movable property. Digital content stored on a physical medium is considered a good. [ ] [18](#page=18). * **Goods/Services (Mixed Contracts):** Contracts involving both goods and services are always considered sales contracts if they include the sale of a tangible movable good. [ ] [19](#page=19). * **Digital Content and Digital Services:** These are specifically defined and have distinct legal regimes, particularly concerning warranties and the right of withdrawal. [ ] [20](#page=20). * Digital content not on a physical medium is not considered a "good" under the goods legislation but is covered by specific rules for digital content and services. [ ] [20](#page=20). * "Free" digital content or services in exchange for personal data are also covered by consumer protection rules. [ ] [20](#page=20). * **Products (Article I.8, 47° WER):** A broad definition encompassing goods, services, rights, obligations, and digital content/services, relevant for unfair commercial practices. [ ] [21](#page=21). #### Definition of Consumer (Article I.1, 2° WER) * **Natural Persons Only:** Legal entities cannot be considered consumers. [ ] [22](#page=22). * **Purpose of the Contract:** The key criterion is whether the person acts for purposes outside their professional activity. This is assessed based on the objective nature of the good or service and the consumer's intent. [ ] [22](#page=22). * **Future Professional Activity:** Generally, acting with a view to a future professional activity does not qualify for consumer protection. However, recent case law suggests that a natural person without an existing professional activity may still be considered a consumer when acting for a future professional activity, provided it is not their sole economic activity at the time of contracting. [ ] [23](#page=23). * **Mixed Use:** For contracts with mixed private and professional purposes, the consumer is protected if the professional use is negligible or if the private use predominates. [ ] [27](#page=27). * **Definition of Undertaking (Article I.8, 39° WER):** This definition covers natural or legal persons pursuing an economic activity on a durable basis. Occasional sales are excluded. [ ] [30](#page=30). * **Territorial Scope:** Contractual aspects are governed by the Rome I Regulation, which provides a specific rule for consumer contracts (Article 6). If no choice of law is made, the law of the consumer's habitual residence applies. This rule aims to protect consumers by allowing them to benefit from the mandatory provisions of their home country's law. [ ] [32](#page=32). * The application of this rule requires the undertaking to have directed its activities towards the consumer's country. [ ] [34](#page=34). ### Contract Terms and Unfair Clauses * **Bindin g Force of General Terms and Conditions:** Consumers must have a reasonable opportunity to review general terms and conditions before concluding a contract, and their acceptance must be explicit or implicit. [ ] [40](#page=40). * **Pre-contractual Information (Article VI.2 WER):** Undertakings have a general obligation to provide specific pre-contractual information to consumers, including details about general terms and conditions. [ ] [43](#page=43). * **Transparency Requirement:** Contractual terms must be clear and comprehensible. Lack of transparency can lead to a finding of unfairness. This applies to formal (appearance), procedural (access), and material (content) aspects of transparency. [ ] [44](#page=44). * **Exclusion of Core Terms:** Clauses that define the core performance of the contract (e.g., price, main object) are generally excluded from unfairness review, provided they are clear and comprehensible. [ ] [50](#page=50). * **Black List (Article VI.83 WER):** Contains a list of terms that are prohibited in all circumstances. [ ] [49](#page=49). * **General Assessment Norm (Article VI.82 WER):** Prohibits terms that create a significant imbalance in the parties' rights and obligations to the detriment of the consumer. [ ] [49](#page=49). * **Sanction:** The primary sanction for unfair contract terms is their unenforceability, meaning they do not bind the consumer. In Belgium, this is often translated into the nullity of the term. [ ] [49](#page=49). * **Unilateral Modification Clauses:** Terms allowing an undertaking to unilaterally change contract terms, prices, or delivery times are subject to strict scrutiny, particularly regarding transparency and the consumer's right to terminate the contract. [ ] [54](#page=54). * **Wider Meaning of "Undertaking" for Certain Purposes:** In the context of consumer law, "undertaking" is interpreted broadly to ensure maximum consumer protection. [ ] [30](#page=30). #### Specific Prohibited Terms (Black List Examples) * **Unilateral Price or Contract Term Changes:** Undertakings cannot unilaterally modify prices or contract terms unless based on objective criteria or specific exceptions for indefinite-term contracts with proper notification and termination rights. [ ] [54](#page=54). * **Unilateral Modification of Essential Characteristics:** Modifying essential characteristics of a product or service without the consumer's consent is prohibited. [ ] [56](#page=56). * **Unfair Termination Clauses:** Undertakings cannot reserve the right to terminate indefinite-term contracts without reasonable notice or to terminate fixed-term contracts without providing adequate compensation to the consumer. [ ] [58](#page=58). * **Exclusion of Consumer Defenses:** Clauses that prevent consumers from invoking defenses, such as the exception of non-performance (exceptio non adimpleti contractus), are void. [ ] [59](#page=59). * **Excessive Penalty Clauses (Article VI.83, 24° WER):** Prohibits penalty clauses that are manifestly disproportionate to the actual damage suffered by the undertaking. The recent Book XIX WER sets specific caps for late payment fees. [ ] [67](#page=67). * **Reciprocity and Equivalence Requirements (Article VI.83, 17° WER):** If an undertaking imposes penalties or higher interest rates for consumer non-performance, it must offer equivalent compensation to the consumer for the undertaking's own non-performance. [ ] [60](#page=60). * **Exclusion or Limitation of Liability (Article VI.83, 13° & 25° WER):** Undertakings cannot exclude or limit their liability for gross or intentional fault (Article VI.83, 13° WER) or for physical damage (Article VI.83, 25° WER). [ ] [71](#page=71). * **Clauses on Silent Renewal (Articles VI.83, 19° & 20° WER):** Prohibits overly long or unclear silent renewal clauses, especially for services, and requires specific information to be provided to the consumer. Article VI.91 WER provides specific protections for consumers regarding silent renewals of service contracts. [ ] [75](#page=75). * **Jurisdiction Clauses (Article VI.83, 23° WER):** Clauses that unfairly disadvantage consumers by designating an inconvenient or inaccessible jurisdiction can be deemed unfair. [ ] [78](#page=78). * **Limitations on Consumer Evidence (Article VI.83, 21° WER):** Prohibits clauses that unfairly limit the consumer's means of proof. [ ] [80](#page=80). * **Ambiguous Clauses:** Ambiguous clauses are interpreted in favor of the consumer. [ ] [83](#page=83). * **Duty to Inform about Legal Rights:** Undertakings must inform consumers about their legal rights, and failure to do so transparently can render clauses unfair. [ ] [83](#page=83). #### General Assessment Norm (Article VI.82 WER) * This norm prohibits terms that create a "manifest imbalance" in the parties' rights and obligations. [ ] [81](#page=81). * **Assessment Criteria:** The assessment considers circumstances at the time of contract conclusion, other contract terms, and the clarity and comprehensibility of the clause. [ ] [81](#page=81). * **Consumer's Perspective:** The assessment is made from the perspective of the average consumer, who is reasonably informed, circumspect, and attentive. [ ] [83](#page=83). * **Role of CJEU:** The CJEU provides criteria for assessing fairness but does not rule on individual cases. [ ] [81](#page=81). #### Sanctioning of Unfair Terms (Article VI.84 WER) * **Nullity:** Unfair terms are null and void and do not bind the consumer. [ ] [89](#page=89). * **No Revision:** National courts cannot revise or moderate unfair terms; they must be set aside entirely. [ ] [90](#page=90). * **No Return to Suppletive Law:** Generally, if an unfair term is voided, parties cannot fall back on default (suppletive) contract law provisions to fill the gap, especially if doing so would undermine the dissuasive effect of the sanction. However, exceptions exist where the contract cannot subsist without the term and voiding it would severely disadvantage the consumer. [ ] [92](#page=92). * **Restitution:** Consumers can recover payments made based on unfair terms, plus interest, though this is subject to statutes of limitation and the principle of res judicata. [ ] [94](#page=94). ### Consumer Purchase: Guarantee for Goods * **Legal Guarantee vs. Commercial Guarantee:** The legal guarantee is mandatory and provided by law, while a commercial guarantee is voluntary and offered by the seller or manufacturer, often for a fee. [ ] [105](#page=105). * **Scope:** The legal guarantee applies to sales contracts between an undertaking and a consumer for tangible movable goods. [ ] [99](#page=99). * **Second-hand Goods:** The guarantee period can be reduced to one year, provided clear information is given to the consumer. [ ] [114](#page=114). * **Goods with Digital Elements:** Goods incorporating digital content or services are subject to the goods warranty rules if the digital element is essential for the goods' functionality and is supplied under the sales contract. [ ] [102](#page=102). * **Live Animals:** Specific rules apply, including a shorter guarantee period and stricter notification requirements. [ ] [101](#page=101). * **Conformity Criteria (Article 1649ter OBW):** Goods must meet both objective (intended use, quality) and subjective (as per contract) conformity criteria. [ ] [107](#page=107). * **Burden of Proof:** Initially, the burden is on the consumer to prove a conformity defect. However, for defects manifesting within two years of delivery, there is a rebuttable presumption that the defect existed at the time of delivery. [ ] [117](#page=117). * **Guarantee Period:** The legal guarantee period is two years from delivery. [ ] [114](#page=114). * **Remedies (Article 1649quies BW):** Consumers have a hierarchy of remedies: 1. **Repair or Replacement:** The primary remedies, free of charge, within a reasonable time and without significant inconvenience. [ ] [119](#page=119). 2. **Price Reduction or Contract Termination:** Available if repair or replacement is impossible, disproportionate, or not performed within a reasonable time, or if the defect is significant. [ ] [119](#page=119). * **Additional Damages:** Consumers may claim additional damages for losses incurred beyond the repair or replacement of the defective good. [ ] [126](#page=126). * **No New Guarantee Period After Repair/Replacement:** The guarantee period is suspended, not restarted, during repair or replacement. [ ] [116](#page=116). ### Guarantees for Digital Content and Digital Services * **Scope:** Applies to digital content and digital services supplied to consumers, provided there is a price paid, including the provision of personal data. [ ] [135](#page=135). * **Conformity:** Similar objective and subjective criteria apply as for tangible goods, including the right to receive updates and the requirement for correct integration into the consumer's digital environment. [ ] [136](#page=136). * **Remedies:** Mirror the remedies for goods: conformity, price reduction, or contract termination. [ ] [139](#page=139). * **Duration:** For continuously supplied services, the liability period matches the contract duration. For single supplies, it's two years, with a one-year presumption of non-conformity at the time of delivery. [ ] [138](#page=138). ### Debt Collection from Consumers * **Book XIX WER:** This book introduced specific regulations for amicable debt collection to protect consumers from excessive costs and aggressive practices. [ ] [141](#page=141). * **Key Provisions:** * **Cost-Free Reminder:** A free payment reminder must be sent before any late fees or penalties can be claimed. [ ] [146](#page=146). * **14-Day Waiting Period:** After the reminder, a 14-day waiting period must be observed before initiating further collection actions or charging late fees. [ ] [147](#page=147). * **Limitation on Fees (Article XIX.4 WER):** Strict caps are imposed on late payment interest and flat-rate collection fees to prevent excessive charges. [ ] [151](#page=151). * **Amicable Collection Rules:** Specific rules govern the conduct of debt collectors, including restrictions on house visits and communications, and mandatory information to be provided to the consumer. [ ] [158](#page=158). * **Sanctions for Non-Compliance:** Non-compliance can lead to the consumer being exempt from paying penalty clauses or, in severe cases, the court ordering the return of payments and releasing the consumer from the debt obligation towards the original creditor. [ ] [160](#page=160). * **Prospective IOS Procedure for B2C:** The government is considering extending the "IOS procedure" (simplified debt collection for undisputed claims) to B2C contexts, with enhanced consumer safeguards. [ ] [162](#page=162). ### Distance and Off-Premises Contracts * **Ratio Legis:** These rules are designed to protect consumers from information asymmetry (distance contracts) and undue pressure or surprise tactics (off-premises contracts) by providing pre-contractual information and a right of withdrawal. [ ] [168](#page=168). * **Scope:** Primarily applies to B2C contracts involving goods, services (excluding financial services in many instances), digital content, and energy contracts. [ ] [170](#page=170). * **Definition of Distance Contract:** Concluded without the simultaneous physical presence of trader and consumer, using distance communication techniques. [ ] [171](#page=171). * **Definition of Off-Premises Contract:** Concluded in the simultaneous physical presence of parties, but outside the trader's business premises, or immediately after the consumer has been addressed in person in a non-business location. [ ] [173](#page=173). * **Information Obligations (Article VI.45 WER):** Traders must provide extensive pre-contractual information to consumers. Failure to do so can lead to extended withdrawal periods or contract remedies under unfair commercial practices. [ ] [177](#page=177). * **Right of Withdrawal:** Consumers have a 14-day right to withdraw from distance and off-premises contracts without penalty. [ ] [191](#page=191). * **Start of Term:** The 14-day period generally starts from the conclusion of service contracts or the receipt of goods. [ ] [191](#page=191). * **Exceptions:** Certain contracts are exempt, such as those for customized goods, rapidly perishable items, sealed audio/video or software if unsealed, newspapers, and certain services like accommodation and transport at a specific date. [ ] [213](#page=213). * **Digital Content/Services:** Withdrawal is generally excluded for digital content if delivered immediately with the consumer's explicit consent and acknowledgment of losing the right of withdrawal. Digital services are treated similarly if fully performed within the withdrawal period with explicit consumer consent. [ ] [215](#page=215). * **Confirmation of Contract:** Information provided pre-contractually must be confirmed on a durable medium, typically before or at the time of delivery of goods or performance of services, unless already provided on a durable medium beforehand. [ ] [186](#page=186). * **Sanctions for Information Breaches:** Failure to comply with information obligations can result in extended withdrawal periods, the consumer being exempt from paying for unrequested goods or services, or potentially applying remedies under unfair commercial practices. [ ] [189](#page=189). ### General Consumer Contract Provisions * **Pre-contractual Information (Article VI.2 WER):** Traders must provide clear and comprehensible pre-contractual information to enable consumers to make informed decisions. This includes details about the product, price, trader's identity, and contractual terms. [ ] [216](#page=216). * **Price Indication (Articles VI.3, VI.4, VI.6 WER):** Prices must be clearly and unambiguously indicated, including all taxes and additional costs. [ ] [220](#page=220). * **Transparency Obligation (Article VI.37 WER):** Contract terms must be clear and understandable. Ambiguous terms are interpreted in favor of the consumer. [ ] [222](#page=222). * **Prohibition of Default Options (Article VI.41 WER):** Traders cannot use pre-ticked boxes or default options that require consumers to opt-out of additional services or charges; explicit consent is required. [ ] [225](#page=225). * **Use of Payment Methods (Articles VI.7/4 & VI.7/5 WER):** Traders must offer at least one electronic payment method and generally must accept cash payments in physical stores, with limited exceptions. [ ] [226](#page=226). * **Delivery Terms (Article VI.43 WER):** Suppletive delivery is "without undue delay" and at most within 30 days. If this is not met, the consumer must grant an additional appropriate period. If still not delivered, the consumer can terminate the contract. [ ] [228](#page=228). * **Transfer of Risk (Article VI.44 WER):** The risk of loss or damage to goods passes to the consumer only upon physical possession of the goods by the consumer or a third party designated by them (excluding the carrier chosen by the consumer unless the trader failed to inform them of this). [ ] [229](#page=229). ### Advertising and Unfair Commercial Practices towards Consumers * **EU Framework:** The Unfair Commercial Practices Directive (UCPD) and the Comparative Advertising Directive form the core EU framework. The UCPD is maximally harmonized, meaning member states cannot impose additional prohibitions beyond those listed, except in specific areas like financial services and immovable property. [ ] [233](#page=233). * **Structure of the Regulation:** The rules are structured around: * **Black Lists:** Specific commercial practices that are prohibited in all circumstances (Articles VI.100 and VI.103 WER). [ ] [240](#page=240). * **General Norms:** Broad prohibitions against misleading and aggressive practices that materially distort or are likely to materially distort the economic behavior of consumers. [ ] [253](#page=253). * **Overarching Norm:** Prohibits unfair practices that violate professional diligence and materially distort economic behavior. [ ] [267](#page=267). * **Definition of Advertising (Article I.8, 13° WER):** Any communication by an undertaking aimed at promoting the sale of products, directly or indirectly. This includes practices that enhance the company's image. [ ] [236](#page=236). * **Definition of Commercial Practice (Article I.8, 23° WER):** A broader concept encompassing any act, omission, conduct, representation, or commercial communication by a trader relating to the promotion, sale, or delivery of a product. This includes practices during contract execution. [ ] [237](#page=237). * **Sanction (Article VI.38 WER):** If a contract is concluded as a result of an unfair commercial practice, the consumer may be released from their payment obligation or entitled to recover payments already made, while potentially retaining the goods or services. [ ] [268](#page=268). * **"Dark Patterns":** These are manipulative interface designs that exploit consumer psychology to steer them towards certain choices. While specific EU legislation (DSA) addresses them for online platforms, general UCPD rules apply broadly, and upcoming EU directives will introduce more specific prohibitions. [ ] [271](#page=271). ### Traveler Protection * **Package Travel and Linked Travel Arrangements:** Specific legislation, based on EU directives, protects travelers entering into package travel contracts and linked travel arrangements. [ ] [300](#page=300). * **Package Travel:** Defined as a combination of at least two different travel services (e.g., transport and accommodation) for the same trip, combined by one professional or through linked online booking procedures. The organizer is liable for the entire package. [ ] [301](#page=301). * **Linked Travel Arrangements:** Occur when a trader facilitates the separate booking of travel services from different providers, without transferring personal data or when the consumer books sequentially within 24 hours of the first booking, with the trader not being liable for the other providers' services. [ ] [303](#page=303). * **Information Obligations:** Traders must provide comprehensive pre-contractual information, including details about the package, prices, rights, and responsibilities. [ ] [305](#page=305). * **Cancellation Rights:** Travelers generally have the right to cancel package travel contracts, subject to reasonable cancellation fees determined by the organizer. They can cancel without penalty in cases of unavoidable and extraordinary circumstances at the destination or if the organizer makes significant changes to the package. [ ] [311](#page=311). * **Organizer's Liability:** The organizer is liable for the proper performance of all travel services included in the package, even those provided by subcontractors. They have a duty of assistance to travelers in difficulty. [ ] [313](#page=313). * **Exceptions to Liability:** The organizer is not liable for non-conformity caused by the traveler, a third party unrelated to the package, or by unavoidable and extraordinary circumstances (force majeure). [ ] [316](#page=316). #### Protection for Air Passenger Rights * **Regulation (EC) No 261/2004:** This directly applicable EU regulation protects passengers against flight cancellations, denied boarding, and long delays. [ ] [275](#page=275). * **Scope:** Applies to flights departing from an EU airport or flights arriving at an EU airport operated by an EU carrier. [ ] [278](#page=278). * **Passenger Rights:** Depending on the situation (denied boarding, cancellation, or significant delay), passengers are entitled to assistance (meals, accommodation), reimbursement, re-routing, and compensation. [ ] [283](#page=283). * **Force Majeure:** This defense exempts airlines from paying compensation for delays or cancellations caused by extraordinary circumstances beyond their control that could not have been avoided by taking all reasonable measures. Technical defects are generally not considered force majeure unless they stem from a manufacturing fault affecting an entire aircraft type. [ ] [289](#page=289). * **Delay Compensation:** Passengers are entitled to compensation for delays exceeding three hours upon arrival at their final destination, unless caused by force majeure. [ ] [297](#page=297). * **Collection of Compensation:** Passengers can pursue compensation individually or through collective action. Commercial entities also offer services to help passengers claim compensation on a "no cure, no pay" basis. [ ] [277](#page=277). ### Passenger Rights for Other Modes of Transport * EU regulations also provide protection for passengers traveling by train, bus, and coach, and by sea or inland waterways, covering similar rights to assistance and compensation in case of disruptions. [ ] [275](#page=275). ### Package Travel Agreements * **Definition:** A package is a combination of at least two different travel services for the same trip, sold for a total price, and combined either by a single trader or through linked online booking procedures. [ ] [301](#page=301). * **Linked Travel Arrangements:** Occur when a trader facilitates the booking of separate travel services from different providers, without transferring personal data, for the same trip, within 24 hours of the first booking confirmation. The trader offering the arrangement is only liable for the services they provide, not those of other suppliers. [ ] [303](#page=303). * **Information and Contractual Requirements:** Detailed pre-contractual information must be provided, and the final contract must clearly outline the terms, including the organizer's liability and the traveler's rights. [ ] [305](#page=305). * **Modification of Package:** The organizer can modify package details, but significant changes require traveler consent or the right to cancel without penalty and claim damages. Price increases are permissible only under specific circumstances (exchange rate fluctuations, fuel costs, taxes) and with advance notice, with the consumer having the right to cancel if the increase exceeds 8%. [ ] [309](#page=309). * **Traveler's Right to Cancel:** Travelers can always cancel a trip, but may be liable for cancellation fees. They can cancel without penalty in cases of unavoidable and extraordinary circumstances at the destination. [ ] [311](#page=311). * **Organizer's Liability:** Organizers are strictly liable for the proper performance of all services in the package, including those provided by third parties. They also have a general duty of assistance to travelers in difficulty, regardless of fault. [ ] [313](#page=313). * **Dispute Resolution:** Travelers can use the "Geschillencommissie Reizen" (Disputes Committee for Travel) for dispute resolution, which operates as an ADR mechanism. [ ] [317](#page=317). ### Consumer Protection, ADR, and ODR * **Alternative Dispute Resolution (ADR):** The EU promotes ADR as a way to resolve consumer disputes efficiently and accessibly, complementing judicial pathways. The ADR Directive sets quality standards for ADR entities, emphasizing independence, transparency, and effectiveness. [ ] [322](#page=322). * **Online Dispute Resolution (ODR):** The ODR Regulation established an online platform for cross-border e-commerce disputes, acting as a clearinghouse to connect parties with suitable ADR entities. However, its effectiveness has been debated, and it is being replaced by updated provisions integrated into the new ADR Directive and the Digital Services Act. [ ] [325](#page=325). * **Digital Services Act (DSA):** This regulation aims to create a safer digital environment and includes provisions on transparency, content moderation, and out-of-court dispute resolution for online platforms. It mandates that platforms have clear terms and conditions, fair enforcement mechanisms, and provide access to ADR for disputes arising from content moderation decisions. [ ] [326](#page=326). ### Common Mistakes to Avoid * **Misinterpreting Harmonization Levels:** Confusing minimum and maximum harmonization can lead to incorrect assumptions about national supplementary protections. * **Overlooking Specific Definitions:** Applying general legal definitions instead of those specific to consumer law (e.g., "undertaking," "product") can lead to misinterpretations of scope. * **Ignoring the "Average Consumer" Standard:** When assessing unfairness or misleading practices, the perspective of the average consumer is paramount, not that of a particularly sophisticated or vulnerable individual. * **Failing to Distinguish Between Legal and Commercial Guarantees:** Understanding the distinct nature, origin, and enforceability of each is crucial. * **Misapplying the Right of Withdrawal:** Incorrectly assuming a right of withdrawal for all distance contracts or miscalculating the withdrawal period can lead to issues. * **Underestimating the Impact of "Dark Patterns":** Failing to recognize and avoid manipulative design techniques in online interfaces can lead to legal consequences under unfair commercial practices legislation. * **Confusing Package Travel with Linked Travel Arrangements:** Misclassifying these arrangements can significantly alter liability and consumer rights. * **Overlooking the "Force Majeure" Defense in Air Passenger Rights:** While a defense, its scope is narrowly interpreted, and airlines must demonstrate they took all reasonable measures to avoid the disruption. * **Misunderstanding the "No Cure, No Pay" Principle in ADR/ODR:** While beneficial for consumers, understanding the conditions under which the ADR provider is compensated is important. * **Assuming Adherence to EU Directives Automatically Ensures National Compliance:** The transposition of directives into national law is critical, and sometimes national interpretations or specific national rules can add layers of protection or complexity.

# Glossary | Term | Definition | |---|---| | Consumer law | The branch of law that protects consumers in their transactions with businesses, focusing on fairness and transparency in commercial practices and agreements. | | Book VI WER | A section of the Belgian Code of Economic Law that consolidates various consumer protection rules, including those related to unfair contract terms, distance selling, and unfair commercial practices. | | Book XIX WER | A section of the Belgian Code of Economic Law specifically addressing the collection of consumer debts, setting rules for reminders, limitations on fees, and out-of-court collection practices. | | Unfair contract terms | Contractual clauses that, contrary to the requirement of good faith, cause a significant imbalance in the parties' rights and obligations to the detriment of the consumer. | | Black list | A list of contract terms that are considered unfair under all circumstances and are therefore automatically prohibited and void in consumer contracts. | | General assessment norm | A broad legal principle that prohibits contract terms creating a manifest imbalance in the parties' rights and obligations to the detriment of the consumer, assessed based on all relevant circumstances. | | Consumer purchase | A contract of sale where a seller, acting within their trade, business, craft, or profession, sells goods to a consumer. | | Legal guarantee | A statutory guarantee provided by law, ensuring that goods sold are free from conformity defects and fit for their intended purpose, typically lasting for two years from delivery. | | Conformity | The state of a good or service meeting the agreed-upon specifications in the contract, including objective criteria like quality and suitability for common use, and subjective criteria based on specific consumer needs communicated to the seller. | | Right of withdrawal | A consumer's right to cancel a distance or off-premises contract within a specified period (usually 14 days) without giving any reason and without incurring any costs, other than potential return shipping fees or compensation for diminished value. | | Distance contract | A contract concluded between a trader and a consumer under an organized distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the conclusion of the contract occurring exclusively through one or more means of distance communication. | | Off-premises contract | A contract concluded in the simultaneous physical presence of the trader and the consumer, outside the trader's business premises, or in the trader's business premises or on any means of distance communication immediately after the consumer has been addressed in person and individually in a place other than the trader's business premises. | | Commercial practice | Any action, omission, conduct, or commercial communication, including advertising, by a trader directly or indirectly related to the promotion, sale, or supply of a product to consumers. | | Misleading commercial practice | A commercial practice that contains false information or presents information in a way that deceives or is likely to deceive the average consumer, thereby causing them to take a transactional decision they would not otherwise have taken. | | Aggressive commercial practice | A commercial practice that, through harassment, coercion, or undue influence, significantly impairs the average consumer's freedom of choice with regard to a product, thereby causing them to take a transactional decision they would not otherwise have taken. | | Alternative Dispute Resolution (ADR) | A mechanism for resolving consumer disputes outside of court, involving an independent and impartial third party to facilitate a resolution through mediation, conciliation, or arbitration. | | Online Dispute Resolution (ODR) | A specific form of ADR that utilizes online platforms and tools to facilitate the resolution of disputes, particularly in the context of e-commerce transactions. |