Improving consumer rights in Conctract Law in Germany
Since January 2022, Germany has been one of the pioneering countries in protecting consumer rights online. In particular, four laws have been implemented, covering consumer contracts and the sale and purchase of digital products, the provision of digital content and services, and the modernisation of consumer information.
In particular, these laws are as follows:
- “Law on Fair Consumer Contracts”.
- “Law on the Regulation of the Sale and Purchase of Goods with Digital Elements and Other Aspects of the Purchase Contract”.
- “Law Implementing the Directive on Certain Aspects of Contracts for the Supply of Digital Content and Services”.
- “Law on the implementation of the EU Directive on better enforcement and modernisation of consumer protection rules”.
It is therefore interesting to highlight some of the different measures introduced by these legislative reforms. Firstly, § 434 paragraph 1 BGB establishes a new content for material defects in both business-to-business and consumer contracts.
In particular, it is understood that, for any product, both the conditions agreed in the contract and the objective requirements of assembly must be fulfilled in order to assess the absence of defects. Therefore, it may happen that a product has been made in accordance with the conditions agreed in the contract, but is not suitable for normal use and is considered defective.
Secondly, the provisions of §§ 474 et seq. of the BGB are amended in relation to contracts concluded between entrepreneurs and consumers. In this case, the occurrence of a defect in the goods results in the interruption of the warranty period for a period of 4 months. Similarly, if a repair is carried out during the warranty period, the period is interrupted for 2 months after the repair has been carried out. Finally, the duration of the seller’s duty to prove whether or not the product was defective from the time it is delivered is extended to 1 year.
Thirdly, §§ 327 et seq. BGB provide for the regulation of contracts for digital goods and services, which applies to all contracts concluded as of 1 January 2022. These changes not only benefit consumers, but can also be useful for entrepreneurs against suppliers, as a special warranty right is introduced, which distinguishes between punctual and permanent performance.
Furthermore, pursuant to § 327f BGB, a further obligation on the entrepreneur is to carry out updates during the relevant period, which are necessary to maintain the digital product. As to the concept of the relevant period, this is the period that the consumer can expect depending on the nature and purpose of the digital product.
As regards the duty to update, there is no case law on the matter that delimits the scope and content of this duty. This is a complex issue, given that in digital products there is software, hardware or applications that have not been developed by the seller, so updating does not depend on the seller.
In addition, reporting obligations in online marketplaces are becoming more demanding. Online marketplace platforms such as Amazon or Aliexpress, for example, will be obliged to inform consumers about the criteria used to search for products, whether the platform is linked to the supplier of the specific product, whether it is the platform itself that offers the product in question… Finally, they must inform if the offers or prices they offer to a specific person are made through an automated process. All these information duties enter into force on 25 May 2022.
Fourth and finally, § 312k BGB provides for the termination of online consumer contracts. In other words, there must be a cancellation mechanism on the website where the offer is made and the consumer must in any case be informed of the details of the offer. This measure will apply from 1 July 2022.
In the context of the Spanish legal system, Royal Decree-Law 7/2021 of 27 April, which transposes several European Union Directives in different areas and amends the General Law on Consumers and Users, was enacted in similar terms. All of this, in order to incorporate new provisions for digital content and services contracts, the sale and purchase of goods online and the strengthening of consumer rights.