The right of withdrawal in distance contracts

The right of withdrawal in distance contracts

Books VI and XIV of the Code of Economic Law
Companies (book VI CDE) – art. VI.47 and following CRC
Liberal professions (book XIV CDE) – art XIV.29 and following CRC

How soon can the consumer exercise the right of withdrawal?

The consumer must inform the company or the person exercising a liberal profession of his wish to withdraw within 14 calendar days, without reason and without other additional costs than those provided for by the Code.

When does the withdrawal period begin?

The withdrawal period begins:

• for sales contracts, from the day after the day on which the consumer or the third party designated by the consumer takes physical possession of the goods, except in the special cases provided for in Books VI and XIV of the Code of Economic Law;
  • in the case of multiple goods or goods made up of batches forming part of a single order but delivered separately, from the day after taking possession of the last good or the last batch;
  • in case of regular delivery of goods for a specified period of time, starting from the day after taking possession of the first good.
• for service contracts, from the day following the day of the conclusion of the contract.

Provisions specific to companies

The withdrawal period begins:

• for sales contracts which relate to both goods and services, from the day after the day on which the consumer or the third party designated by the consumer takes physical possession of the goods, except in special cases provided for in the book VI of the Code of Economic Law;
• for contracts for the supply of water, not conditioned in a limited volume or in a determined quantity, as well as for district heating, from the day after the day of the conclusion of the contract.
  As regards the supply of gas and electricity, reference should be made to the Agreement “The consumer in the liberalized electricity and gas market”

How can the consumer withdraw?

The consumer informs the company or the person exercising a liberal profession of his decision to withdraw from the contract, before the expiry of the withdrawal period of 14 calendar days, by sending him:

either, the completed and signed withdrawal form;
either, an unambiguous statement clearly setting out its decision to withdraw from the contract (examples: telephone, e-mail, sms, mail, etc.);
if the company or the person exercising a liberal profession provides, the withdrawal form or another unambiguous statement online on its website. An acknowledgment of receipt is then sent without delay to the consumer on a durable medium.
The burden of proof of his decision to withdraw lies with the consumer. Therefore, it is advisable to withdraw in writing or via a durable medium (examples: by e-mail, mail).
Is a withdrawal possible if the performance of the contract began during the withdrawal period?
Yes, if it is a service contract for which an express request for the performance of the service during the withdrawal period has been presented to the company or the person exercising a liberal profession.
However, the consumer will have to pay to the company or to the person exercising a liberal profession an amount proportional to what it has provided to him until the moment when the consumer has informed him of his decision to withdraw in relation to the all the services provided for in the contract.
The amount is calculated on the basis of the total price agreed in the contract or on the basis of the market value of the services provided if the total price is excessive.
However, no cost will be due:
 for the provision of services during the withdrawal period if:
o the company or the person exercising a liberal profession did not provide, before the conclusion of the contract, the information relating to the right of withdrawal;
o the consumer has not expressly requested that performance begin during the withdrawal period.
 For the online supply of digital content that is not provided on a physical medium (example: software download), if:
o the consumer has not given his express prior agreement for its execution during the withdrawal period;
o the consumer has not acknowledged losing his right of withdrawal by giving his consent;
o the company or the person exercising a liberal profession has omitted to send him a confirmation of the contract concluded and of the prior express agreement given by the consumer.
Special provision for companies
Yes, if it is a contract for the supply of water, gas or electricity, not packaged in a limited volume or in a determined quantity, or for urban heating for which an express request for execution of the service during the withdrawal period has been presented to the company. The consumer will have to pay the company an amount proportional to what it has provided to him until the moment when the consumer has informed him of his decision to withdraw from all the services provided for in the contract. The amount is calculated on the basis of the total price agreed in the contract or on the basis of the market value of the services provided if the total price is excessive.
However, no cost will be due if:
 the company has not provided information relating to the right of withdrawal before the conclusion of the contract;
 the consumer has not expressly requested that performance begin during the withdrawal period.
What are the effects of exercising the right of withdrawal?
By exercising his right of withdrawal, the consumer terminates the conclusion or performance of the distance contract and any ancillary contract (credit contract) free of charge, except those provided for in Books VI (art. VI.51 CDE ) and XIV (art. XIV.33 CDE) of the Code of Economic Law.
What are the costs to be borne by the consumer?
 the costs paid by the consumer when expressly choosing a delivery method different from the standard, less expensive delivery method offered by the company or person exercising a liberal profession;
 the costs of returning the goods, unless the business or person exercising a liberal profession has forgotten to inform the consumer that he must bear them;
 the costs due to the company or the person exercising a liberal profession for the service provided until the moment he exercises his right of withdrawal, after having requested that the service contract begin before the end of the withdrawal period.
What are the terms and conditions for returning goods?
If the company or the person exercising a liberal profession does not offer to recover the goods itself:
 the consumer sends back or returns the goods to the company or to the person exercising a liberal profession or to a person authorized by the company or by the person exercising a liberal profession to receive the goods, within 14 days of communication to the company or the person exercising a liberal profession of its decision to withdraw from the contract;
 the consumer bears the direct costs resulting from the return of the goods, unless:
o the company or the person exercising a liberal profession agrees to take charge of them;
o the company or the person exercising a liberal profession has omitted to inform the consumer that he must pay for them.
What are the repayment terms?
The business or person exercising a liberal profession reimburses the consumer for all payments it has received from him, including delivery costs, where applicable, without undue delay and in any event within 14 days of the day it is informed of the consumer’s decision to withdraw.
Attention ! The company or the person exercising a liberal profession is not obliged to reimburse the additional costs due to the express choice of the consumer of a mode of delivery other than the standard and less expensive delivery offered by the company or by the person exercising a liberal profession.
The company or the person exercising a liberal profession must reimburse the consumer using the same means of payment that he used for the initial purchase, unless the consumer has expressly agreed to another means of payment, provided that the reimbursement does not does not incur any costs.
Attention ! With regard to sales contracts, the company or the person exercising a liberal profession, which does not offer to recover the goods itself, may defer reimbursement:
 either, until the recovery of the goods;
 or until the consumer provides proof of shipment of the goods.
The refund must then be made as soon as possible, or at most within a few days following the first of these facts.
What is the consumer’s responsibility in case of depreciation of the goods?
The responsibility of the consumer is engaged in relation to manipulations of the goods other than those which are necessary to establish the proper functioning of these goods. If the company or the person exercising a liberal profession has failed to inform him of his right of withdrawal before the conclusion of the sales contract, the consumer will not be liable for the depreciation of the goods.
What is the consequence of forgetting information about the right of withdrawal?
If the company or the person exercising a liberal profession has failed to inform the consumer of his right of withdrawal, the period of 14 calendar days is extended to 12 months from the end of the initial withdrawal period.
If the company or the person exercising a liberal profession communicates this information to the consumer within 12 months, the withdrawal period is reduced to 14 calendar days from the day on which the consumer receives this information.
What are the situations in which the consumer cannot exercise the right of withdrawal?
The consumer cannot exercise the right of withdrawal when:
 the service contract has been fully executed, and that its execution has begun with its express agreement before the expiry of the withdrawal period (examples: if you want to access a database and immediately consult the information requested, without waiting for the end of the withdrawal period) and that he has acknowledged losing his
right of withdrawal once the contract has been fully performed by the company or by the person exercising a liberal profession;
 the price of the goods or services depends on fluctuations on the financial market beyond the control of the company or the person exercising a liberal profession and likely to occur during the withdrawal period;
 the goods supplied have been made to its specifications or clearly personalized;
 the goods supplied cannot be returned or are likely to deteriorate or expire rapidly;
 goods supplied sealed which have been unsealed after delivery and cannot be returned for reasons of hygiene or health;
 the goods supplied which are mixed after delivery with other items inseparably;
 the consumer has expressly asked the person exercising a liberal profession to visit him in order to carry out urgent maintenance or repair work.
! If, during this visit, the company or person exercising a liberal profession provides services in addition to those specifically required by the consumer or goods other than the spare parts essential for maintenance or repair, the right of withdrawal applies to these additional services or goods;
 the online downloading of digital content has begun with his express consent and that he has thus acknowledged losing his right of withdrawal;
In these cases, the company or the person exercising a liberal profession must warn the consumer before the conclusion of the contract:
 either, that he does not have a right of withdrawal;
 or, where applicable, circumstances in which he loses the right of withdrawal.
Special provisions for companies
 the goods supplied are alcoholic beverages, the price of which was agreed at the time of the conclusion of the sales contract, the delivery of which can only be made after
thirty days and whose real value depends on fluctuations in the market beyond the control of the company;
 the goods supplied are newspapers, periodicals or magazines. Attention ! The consumer has the right of withdrawal for subscription contracts to these publications;
 the protection of the material support of an audio or video recording, an e-book or computer software (examples: DVD, CD, USB key, CD-ROM, video cassette, etc.) supplied sealed and is unsealed after delivery. ! When this good is not unsealed, the consumer can withdraw from the contract and return the good intact;
 he has entered into a contract at a public auction;
 he has ordered non-residential accommodation, transport, car rental, catering or leisure services if the contract provides for a specific date or period of performance (e.g. booking for a certain date of plane ticket, hotel, rental car or show tickets).
In these cases, the company must notify the consumer before the conclusion of the contract:
 either, that he does not have a right of withdrawal;
 or, where applicable, circumstances in which he loses the right of withdrawal.