New legislation for webshops

On June 13, 2014 the Consumer Rights Directive will be incorporated in the Dutch Civil Code. As from that date there will be new rules for every entrepreneur offering products or services online, at a distance, to consumers, for example through an online store. What should you keep in mind if you have a webshop?

Duty to provide information
Each webshop owner has an extensive obligation to provide information. Prior to the conclusion of an agreement with a consumer, you must provide sufficient, clear and comprehensible information on, inter alia:

  1. the main features of the product or service;
  2. the identity of the seller (name, address, telephone number, email address, commercial register number, VAT number);
  3. the price of the product or service including all taxes;
  4. the arrangements for payment and delivery, the delivery time and the complaints policy;
  5. the delivery costs (if applicable);
  6. the existence of the legal obligation to deliver a product that conforms to the agreement, any assistance and after-sales services and guarantees;
  7. the duration of the agreement or – in case of an agreement for an indefinite period or automatic renewal – the conditions for terminating the contract;
  8. the consumer’s right of withdrawal (conditions, terms and modalities for the exercise of this right) and the model withdrawal form (modelformulier voor herroeping);
  9. the general terms and conditions.

In addition, in the order process you must communicate clearly visible and prominent near the order-button that the consumer takes on a payment obligation by concluding the agreement. You could do this, for example, by including an order-button with the text “order with payment obligation”.

Furthermore, it is not allowed to let the consumer buy additional products or services by pre-filled tick boxes (“opt-out”). The consumer must expressly agree with the purchase of additional products or services, for example, by checking the box himself (“opt-in”).

The right of withdrawal
Under the new regulations, the consumer is entitled to withdraw from the contract within 14 calendar days (instead of 7 working days).

The right of withdrawal means that the consumer has a trial period (no try term) of 14 days within he may decide to cancel the agreement. If the consumer uses this right, he will have 14 calendar days to return the product.

In some cases, the consumer has no right of withdrawal, for example when it comes to the supply of a product that has been manufactured to the consumer’s specifications or in the case of the supply of products that spoil quickly or have a limited shelf life.

A webshop owner must extensively inform the consumer about the right of withdrawal. The following information must be provided:

  1. the conditions, time and manner in which the right of withdrawal can be used;
  2. the announcement that the consumer bears the cost of returning the products when he exercises his right of withdrawal and the amount of costs when the return can not be made by regular mail;
  3. the announcement that the consumer has to pay the reasonable costs of a partly used service, if he uses his right of withdrawal;
  4. the model withdrawal form (modelformulier voor herroeping) as set out in the annex of the European Directive;
  5. the announcement that the consumer has no right of withdrawal, in case the consumer does not have this right pursuant to the law, for example in the above situations when it comes to products that spoil quickly or have a limited shelf life.

To meet the first three requirements, you can use the model instructions on withdrawal (modelinstructies bij herroeping) that are given as an example in the European Directive. However, you are not required to use these model instructions. You can provide this information in any other way. However, the model withdrawal form (mentioned above under point 4) must be provided to the consumer.

Penalties
When you do not inform the consumer, or inform him insufficiently, this could have the following consequences:

  • if the consumer is not or insufficiently informed about delivery costs and the costs returning the goods in case of a withdrawal, those costs will be at your expense;
  • if the consumer is not or insufficiently informed about the right of withdrawal, or in case the model withdrawal form is not provided, the consumer’s time to consider his purchase will be extended until the moment the requirements are fulfilled. The consumer’s time to consider his purchase can amount up to 12 months;
  • if you fail to mention that the consumer’s order contents a payment obligation, the consumer may annul the agreement and he will not be bound by the agreement.

In addition, supervisor Authority for Consumers and Markets (“Autoriteit Consument en Markt”) can take measures and for example impose a fine.

Conclusion
The new legislation for webshops is of mandatory law, meaning there can not be derogated from this legislation to the detriment of the consumer.

In order to comply with the new legislation in due time – that means before June 13, 2014 – you will need to check your webshop, order process and your general terms and conditions and make adjustments if necessary. We are pleased to help you. If you have any questions about the new rules, please contact Floor de Roos or our International Desk attorneys.

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