Consumer rights are enshrined in Article 60 of the Portuguese Republic Constitution, and in Law No. 24/96, of 31 July 1996, which establishes the legal framework applicable to the consumers protection and that set forth, in its Article 4, the right to the quality of goods and services.
In order to transpose Directives (EU) 2019/771 and (EU) 2019/770 into the domestic legislation, the Decree-Law 84/2021 was published on 18 October 2021, with entry into force on 1 January 2022, reinforcing the rights of consumers in the purchase and sale of movable goods, immovable property and digital content and services
The abovementioned legal statute aimed to transpose two Directives of the European Parliament and of the Council into the Portuguese legal system:
- Directive (EU) 2019/771, concerning certain aspects of contracts for the purchase and sale of goods;
- Directive (EU) 2019/770, which provides rules on the provision of digital services and content.
Firstly, and since it is crucial to understand from which moment the changes introduced by the Decree-Law under review will apply, we clarify that they will apply:
- (i) To the contracts for the purchase and sale of movable and immovable property entered into as of 01/01/2022, inclusive;
- (ii) To the contracts for the supply of digital content entered into as of 01/01/2022, inclusive;
- (iii) To the contracts with an indefinite term, or with a fixed term, which provide for the continuous supply or a series of individual acts of supply of digital content or services, entered into prior to its entry into force, but only with regard to the content or digital services that are provided as of 01/01/2022, inclusive.
Almost 20 years after the enactment of the Directive 1999/44/EC, which established a legal framework for minimum harmonization regarding the protection of consumer rights in the European Union, the European Commission presented, in May 2015, the Strategy for the Single Digital Market, with the aim of strengthening consumer protection in this new Era of the Competitive and Digital Market.
Well, it is in this exact context that arises the Directive (EU) 2019/771, of the European Parliament and of the Council, of 20 May 2019, on certain aspects of contracts for the purchase and sale of goods, which amends the Regulation (EU) 2017/2394 and Directive 2009/22/EC, also repealing Directive 1999/44/EC.
We are talking about a legal statute that established common rules regarding certain requirements relating to the purchase and sale contracts entered into between a trader and a consumer, containing, in particular, rules regarding the conformity of the goods with the contract, the means of compensation in the event of lack of conformity, the modalities for the exercise of these remedies and the commercial guarantees, including new realities, as is the case of contracts for the purchase and sale of goods with integrated digital elements.
Conversely, and with regard to Directive (EU) 2019/770, the latter arose as a response, on the one hand, to a legal framework void at the European level, with regard to the provision of consumer rights in the event of non-delivery or non-conformity of digital content or services, and, on the other hand, to the need to leverage the benefits of the growth of electronic commerce for the internal market.
Specifically, the contracts covered by the abovementioned Directive are those that:
- (i) set forth a single act of supply.
- (ii) set forth a series of individual acts of supply.
- (iii) set forth a continuous supply.
Basically, this legal statute ensures that the consumer who provides his personal data to use a digital content or service, will be protected by a set of rights, whether or not their provision or lack of conformity occurs.
And, based on a principle of total harmonization, Directive (EU) 2019/770 establishes rules regarding the supply of digital content and services, providing for the consumer’s right to terminate the contract in the event of non-supply, in accordance with certain rules, as well as in the event of non-compliance with certain subjective and objective requirements.
In view of the above, and as we have already had the opportunity to address, Decree-Law no. 84/2021, of 18 October 2021, transposes the aforementioned directives, reserving:
- Chapter II for the legal framework applicable to the purchase and sale of goods.
- Chapter III for the legal framework applicable to the provision of digital content and services.
- Chapter IV for common provisions.
Firstly, with regard to the purchase and sale of goods, this decree-law immediately expands the definition of “goods”, covering consumer goods that integrate or are interconnected with digital elements.
Based on the principle of conformity of the goods with a set of subjective and objective requirements, the legal statute establishes that the trader is required to deliver to the consumer goods that meet all the aforementioned requirements, under penalty of the goods not being deemed conforming.
Well, in the event of a lack of conformity, it is established the liability of the trader, insofar that such lack is manifested within a period of three years, and that it is deemed to exist on the date of delivery of the good in case it is manifested during the first two years.
Since this Decree-Law transposes, as regards this matter, the Directive (EU) 2019/771, it incorporates the solution set forth in the latter, which is to subject the rights, in the event of non-conformity of the goods, to different levels of precedence.
These are: the right to repair or replace the good, reduce the price or terminate the contract.
Therefore, the consumer will have the right to “reinstate the conformity”, through the repair or replacement of the good, to reduce the price and to terminate the contract, establishing the conditions and requirements applicable to each of these means.
There was, thus, a possibility for the consumer to choose directly between replacing the good and terminating the contract, when a lack of conformity manifested within the first 30 days after delivery of the good is concerned.
The consumer’s obligation to report the defect within a certain period after becoming aware of the defect was also eliminated, reinstating the inexistence of obstacles to the exercise of rights that the consumer has during the period of guarantee of goods.
On the other hand, obligations of the trader were also defined, regarding the repair period, the collection and removal of the goods for repair and the return of the price paid in the event of termination of the contract.
With regard to immovable property, it is especially worth addressing that, in view of their lack of conformity, the guarantee period for same was extended by this legal statute in respect of lack of conformity relating to structural constructive elements to 10 years, with the current 5-year period being maintained for remaining non-conformity situations.
Moving on to the issue of the provision of digital content or services, subjective and objective requirements are also determined for this type of contract for conformity purposes, and the burden of proof in digital content and services lies with the trader, who has an obligation to provide them without undue delay.
In case of non-supply under these conditions, the consumer may ask the trader the supply and, if the latter, having been asked to comply, still does not provide the contents, the consumer will have the right to terminate the contract.
In the event of a lack of conformity of digital content or services, the consumer will have the right:
- (i) The reinstatement of conformity – unless this is impossible or imposes disproportionate costs on the trader;
- (ii) proportional price reduction; or
- (iii) the termination of the contract.
Specifically, in the event of termination of the contract, obligations are imposed both on the traders and on the consumer.
As for the trader, the trader must refund the consumer for all amounts paid and, if the contract stipulates the continuous supply, or a series of individual acts of supply, and the digital content or services have been in conformity during a period prior to the termination of the contract, this refund will be calculated proportionately.
The aforementioned refund is made through the same means of payment used by the consumer in the initial transaction (unless otherwise expressly agreed), and it must be made without undue delay, always within 14 days from the date on which the trader was informed of the decision of the consumer to reduce the price or terminate the contract.
On the other hand, after termination of the contract, the consumer must refrain from using the digital content or services and from making them available to third parties and, whenever the supply has taken place on a material support, the consumer must, at request of the trader, return it, without undue delay, to the trader. The deadline for such request is 14 days from the date on which the trader has been informed of the exercise, by the consumer, of the right to terminate the contract.
Concerning the common provisions, reference must be made to the trader’s right of redress. Thus, within the five years as of the date of delivery of the good by the defendant, the trader may act against the person or persons responsible in the links of the chain of transaction, and this right may be exercised in the lawsuit filed by the consumer.
In this context, reference is made to the person in previous links of the chain of transactions, which is deemed a contractual partner of the trader who provides the good, content or digital service, and who is jointly and severally liable before the consumer for the lack of conformity of such goods.
If there is a person in links of the chain of transactions that is not the trader’s contractual partner, the trader must, before entering into the contract, inform consumers unequivocally that the contract will be executed with a trader, and not with a person in links of the chain of transactions.
Finally, Chapter IV of the Decree-Law now under review, dedicates Section III to the question of inspection, administrative infractions and sanctions, determining that, as a general rule, it is the responsibility of the Food and Economic Security Authority (ASAE – Autoridade de Segurança Alimentar e Económica) to supervise compliance with the provisions in the legal statute, and to carry out the instruction of the respective administrative offense proceedings, being the decision to apply the fines and ancillary penalties of the inspector general of the ASAE responsibility.
The only exception to this rule is the competence of the Instituto dos Mercados Públicos do Imobiliário e da Construção, I.P., which supervises and instructs the proceedings for administrative offences, in the situation of repair or replacement of immovable property due to lack of conformity.
In addition to reinforcing consumer rights through the new provisions and through the infraction’s legal framework established, the legislator also safeguarded the consumer’s standpoint through a mandatory framework, clarifying that any agreement or contractual clause that aims to limit or exclude the consumers’ rights set forth therein will be null and void.
Inês Maltêz da Cunha
Inês Gomes Pereira
Trainees
TFRA will update the information in this document whenever necessary.
The information contained in this document is of a generic nature and does not exempt the analysis of the specific case, nor the review of official documentation and legislation in force at any time.