Kinstellar acts as trusted legal counsel to leading investors across Emerging Europe and Central Asia. With offices in 11 jurisdictions and over 350 local and international lawyers, we deliver consistent, joined-up legal advice and assistance across diverse regional markets – together with the know-how and experience to champion your interests while minimising exposure to risk.
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.
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.
Bulgaria
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.
Croatia
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.
Hungary
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.
Romania
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.
Serbia
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 segments 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.
Slovakia
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.
Turkey
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
