There are two types of guarantees, the commercial guarantee and the legal guarantee. These two types of guarantees operate separately from each other.
The commercial guarantee
The commercial guarantee is a guarantee offered by a professional in the context of a contract concluded with a consumer. This guarantee is entirely optional. Also, the trader is free to determine the extent of such a guarantee.
The legal guarantee of conformity
The legal guarantee is a guarantee which is made compulsory by law and is not dependent on the contract. It protects the buyer from defects in the goods purchased. It covers all consumer goods.
The law on the legal guarantee of conformity (Article L. 212 et seq. of the Consumer Code) obliges the professional seller to deliver goods in conformity with the contract and makes him responsible for defects in conformity existing at the time of delivery, even if he was not aware of them.
The duration of the legal guarantee of conformity is 2 years from the delivery of the goods.
This period is interrupted by the talks between the seller and the consumer. A new period of 1 year starts when the trader informs the consumer by registered letter that he is stopping these talks.
Defects of conformity which appear within 12 months of delivery of the goods shall be presumed to have existed at the time of delivery of the goods, unless proven otherwise.
Defects of conformity which appear beyond the 12-month period but still within the 2-year limit of the legal guarantee of conformity are not presumed to exist at the time of sale. It is then up to the consumer to prove the existence of the defect at the time of the sale in order to benefit from the provisions of the legal guarantee of conformity.
What to do if the goods have a defect?
In the event of a lack of conformity, the consumer can choose between:
- returning the goods and be reimbursed
- keeping the goods and be reimbursed part of the price,
- demanding that the goods be brought into conformity (repair or replacement of the goods)
However, the consumer may not ask for the sale to be rescinded or the price to be reduced if the seller replaces or repairs the goods. Nor can the consumer demand that the goods be brought into conformity (repaired or replaced) if this is impossible or disproportionate.
The goods must be brought into conformity within one month of the request. After this period, the consumer may return the goods and be reimbursed, or keep the goods and be reimbursed for part of the price.
The consumer must not incur any costs or major inconvenience in seeing the goods brought into conformity.
After the 2-year legal guarantee of conformity, Luxembourg law also offers the protection of the guarantee against hidden defects.
Guarantee regime for digital content and services since 01/01/22
The legal guarantee of conformity for goods and services has existed for a long time. But no such rule existed for digital content and services. This situation changed on 1 January 2022 with the entry into force of the Act of 8 December 2021 amending the Consumer Code, which transposes Directives (EU) 2019/770 and (EU) 2019/771.
This law introduced a new regime for the legal guarantee of conformity for digital content and services. These directives aim to ensure better consumer protection in relation to contracts for the supply of digital content and services such as the purchase of an app, a digital book, the subscription to a streaming service, etc.
The law of 8 December 2021 mainly provides for:
- The creation of a legal guarantee of conformity for digital content and services;
- The recognition of a right to a legal guarantee of conformity when providing a digital content or service when the consumer provides personal data (i.e..: opening an account on a social network);
- The consumer's right to refuse modifications which the trader may make to digital content and services;
- The consumer's right to have access to the content which he has created or provided in connection with the use of the content or service in the event of termination of the contract for the provision of the digital content or service.
Durability, functionality, accountability and security of digital goods, content and services play an important role in defining compliance.
In this context, the supplier has an obligation to inform the consumer about the availability of updates and to provide these updates so that the digital good, content or service in question remains compliant. Consequently, the consumer is obliged to install the updates provided in order to be able to claim the legal guarantee of conformity from the trader.
For digital content and services, where the defect appears within 12 months of delivery, the law presumes that the lack of conformity existed at the time of delivery.
The law does not provide for a time limit for notification of the lack of conformity within the legal period of the guarantee of conformity.