Netherlands

Status

Adopted

Explanatory note re status

The legislative process for the implementation of the Omnibus Directive into Dutch law is currently pending in the Lower House of Parliament (Tweede Kamer) and also needs to be passed by the Upper House of Parliament (Eerste Kamer).

The Bill proposes to amend/update the following laws:

• The Civil Code (“Burgerlijk wetboek”, BW);
• The Consumer Protection Enforcement Act (“Wet handhaving consumentenbescherming”, Whc);
• The Price Act (“Prijzenwet”, Pw); and
• The Decree on the Indication of Prices of Products (“Besluit prijsaanduiding producten”).

As required by the Omnibus Directive, the amendments to the BW, the Whc and the Pw have come into force on 28 May 2022. The Decree on the Indication of Prices of Products entered into force on 1 January 2023.

Implementation Act

Act amending Book 6 of the Dutch Civil Code ("DCC"), the Consumer Protection Enforcement Act and the Price Act in connection with the implementation of Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council with regard to better enforcement and modernisation of the consumer protection rules in the Union (OJEU 2019, L 328) ("Wijziging van Boek 6 van het Burgerlijk Wetboek, de Wet handhaving consumentenbescherming en de Prijzenwet in verband met de implementatie van Richtlijn (EU) 2019/2161 van het Europees Parlement en de Raad van 27 november 2019 tot wijziging van Richtlijn 93/13/EEG van de Raad en Richtlijnen 98/6/EG, 2005/29/EG en 2011/83/EU van het Europees Parlement en de Raad wat betreft betere handhaving en modernisering van de regels voor consumentenbescherming in de Unie (PbEU 2019, L 328)" (Act implementing the modernisation of consumer protection directive (“Implementatiewet richtlijn modernisering consumentenbescherming”)) (No. 35940).

Decree amending the Dutch Decree on the Indication of Prices of Products in connection with the implementation of Article 2 of Directive (EU) 2019/2161 ("Besluit houdende wijziging van het Besluit prijsaanduiding producten in verband met de implementatie van artikel 2 van Richtlijn (EU) 2019/2161").

(Envisaged) Implementation Date

As required by the Omnibus Directive, the amendments to the BW, the Whc and the Pw have come into force on 28 May 2022. The Decree on the Indication of Prices of Products entered into force on 1 January 2023.

Approach to implementation

Amendments to existing laws (see "Implementation Act" section).

Next steps

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A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts? Has the option to limit the penalties been implemented? 

Current Dutch law contains penalty provisions applicable to infringements of the national provisions adopted pursuant to the Unfair Contract Terms Directive. Pursuant to Art. 2.15 of the Dutch Consumer Protection Enforcement Act, the relevant enforcement authorities (the Authority for Consumers and Markets (ACM) and the Authority for the Financial Markets (AFM)) can impose administrative fines or orders subject to a penalty if unfair conditions are used in B2C agreements. Such administrative fines can amount to EUR 900,000 or, if higher, 1% of the offender's turnover, or 10% where a fine is imposed because of an unfair trading practice that is expressly defined as unfair in all circumstance (at most).

Under the amended Art. 2.15 of the Dutch Consumer Protection Enforcement Act, fines can be imposed for intentional or negligent widespread infringements and infringements with an EU dimension of inter alia:

• violations of various (precontractual) information obligations;
• violation of the rules regarding the statutory withdrawal period;
• the use of unfair contract terms;
• unfair commercial practices; and
• violation of the trader’s obligation not to assert a claim against the consumer when sending unsolicited goods.

The amended Art. 2.15 stipulates that the fine for such widespread infringements and infringements with an EU dimension may not exceed 4% of the annual turnover of the offender in the Member State(s) where the infringement took place or 10% in situations where a fine is imposed because of an unfair trading practice that is expressly defined as unfair in all circumstances. Also, the maximum fine can be doubled in the event of a repeat infringement. If there are no indications of an estimate of the annual turnover, the maximum fine is EUR 2,000,000. Fines may only be applied through the coordinated action mechanism established by Regulation (EU) 2017/2394.

The Netherlands has refrained from acting on the option given by the Directive to set higher maximum fines than the fines mentioned above.

A list of non-exhaustive and indicative penalty criteria is included in a new Art. 2.10 of the Dutch Consumer Protection Enforcement Act so these criteria apply to both ACM and AFM.

Possible assessment criteria for ACM were already included in ACM's penalty policy 2014 ("Boetebeleidsregel ACM 2014").

The option to limit the penalties has also not been implemented in the Netherlands. The Dutch legislator clarified that the implementation of such option would result in a lower level of consumer protection.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

When announcing price reductions, the trader shall indicate the lowest sale price applied during a period of not less than thirty days before the application of the price reduction.

The Dutch legislator has used all three options to introduce certain exceptions. Therefore, the above does not apply to:

• goods which are liable to deteriorate or expire rapidly (in particular food);
• progressive, uninterrupted price reductions; and
• goods that have been on sale for less than 30 days (then the lowest price since the start of the sale must be indicated).

The above is stipulated in Art. 5a of the Decree on the Indication of Prices of Products.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

Current Dutch law contains penalty provisions applicable to infringements of the national provisions adopted pursuant to the Price Indications Directive. Pursuant to Art. 2.15 of the Dutch Consumer Protection Enforcement Act, the relevant enforcement authorities (the Authority for Consumers and Markets (ACM) and the Authority for the Financial Markets (AFM)) can impose administrative fines or orders subject to a penalty amounting to a maximum of EUR 900,000 or, if higher, 1% of the turnover (or 10% in situations where the contractual terms are expressly defined as unfair in all circumstances).

The indicative criteria for the imposition of fines will be set out in Art. 2.10 of the Dutch Consumer Protection Enforcement Act and Penalty Policy ACM 2014 and, inter alia, include the nature, gravity, scale and duration of the infringement.

For the changes to the relevant Art. 2.10 and 2.15 of the Dutch Consumer Protection Enforcement Act, please review the input below under 'Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)'.

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

The Unfair Commercial Practices Directive has been implemented in Section 3A, Title 3 of Book 6 of the Dutch Civil Code. The new/updated definitions, including 'product', will be included in Art. 6:193a of the Dutch Civil Code. This term currently includes goods, property rights and services. By explicitly including the reference to digital content and digital services, Section 3A, Title 3 of Book 6 of the Dutch Civil Code will apply to digital services and digital content.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Traders who offer search functionalities will have to provide clear information about the main parameters used to the rank products in online searches and their relative importance (Art. 6:193e (2) Dutch Civil Code).

If the trader does not comply with the above obligation, this constitutes misleading by omission according to Art. 6:193d (2) Dutch Civil Code.

Providing search results without (clearly) disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results will be regarded as unfair in all circumstances pursuant to Art. 6:193g (x) Dutch Civil Code.

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

Traders who sell goods and services on online marketplaces will be required to inform consumers whether an item is purchased from another consumer or a different trader. Traders who provide online marketplaces are obliged to inform consumers as to whether an item is purchased from another consumer or a different trader. In the case of a transaction with other consumers, the consumer will not benefit from EU consumer protection rules (Art. 6:193e (f) DCC).

This information is labelled as 'essential' information. Failing to provide this essential information at all or failing to provide it in a clear and unambiguous way will be regarded as a misleading omission according to Art. 6:193d (2) DCC.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

The Netherlands has not used the option to introduce new regulations with respect to doorstep selling and commercial excursions (i.e. excursions organised by a trader with the aim or effect of promoting or selling products to consumers).

In general, a trader can be held liable for damages resulting from unfair commercial practices based on Art. 6:193j (2) and 6:162 DCC. Pursuant to Dutch law, a contract concluded as a result of an unfair commercial practice is voidable.

V. What transparency obligations must traders who publish consumer reviews now comply with?

Traders are obliged to inform the consumer about whether and how they ensure that reviews originate from consumers who are actual users/buyers (Art. 6:193e (f) DCC).

This information is labelled as 'essential' information. Failing to provide this essential information at all or failing to provide it in a clear and unambiguous way will be regarded as a misleading omission according to Art. 6:193d (2) DCC.

This stipulation only covers traders who make consumer reviews accessible themselves. If traders merely refer via a link to consumer reviews published by third parties about the goods or services offered by them, the obligation does not apply.

In addition, several practices in relation to consumer reviews have been added to Art. 6:193g DCC including practices that will be regarded as unfair in all circumstances. It is misleading:

• to state that reviews are submitted by actual users/buyers without taking reasonable and proportionate steps to check authenticity (sub z); and
• to submit or commission another person to submit false reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products (sub aa).

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

It will be considered a misleading practice to market a good as identical to a good offered in another EU Member State if the goods differ substantially and such difference cannot be justified by legitimate and objective factors or be clearly recognisable to the consume. This is implemented in Art. 6:193c (2) (c) DCC.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

Pursuant to current Dutch law, traders can be held liable for damages resulting from unfair commercial practices based on Art. 6:193j (2) and 6:162 DCC. Also, a contract concluded as a result of an unfair commercial practice is voidable.

The Dutch legislator clarified that, therefore, no changes have been made to the Dutch Civil Code in this regard.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

Current Dutch law contains penalty provisions applicable to infringements of the national provisions adopted pursuant to the Unfair Commercial Practices Directive. Pursuant to Art. 2.15 of the Dutch Consumer Protection Enforcement Act, the relevant enforcement authorities (the Authority for Consumers and Markets (ACM) and the Authority for the Financial Markets (AFM)) can impose administrative fines or orders subject to a penalty amounting to a maximum of EUR 900,000 or, if higher, 1% of the turnover (or 10% in situations where the contractual terms are expressly defined as unfair in all circumstances).

Under the amended Art. 2.15 of the Dutch Consumer Protection Enforcement Act, fines can also be imposed for intentional or negligent widespread infringements and infringements with an EU dimension of inter alia unfair commercial practices. The Netherlands has refrained from acting on the option given by the Directive to set higher maximum fines than the fines mentioned above.

For the changes to the relevant Articles of the Dutch Consumer Protection Enforcement Act, please review the input above under 'Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)'.

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Goods with digital elements as well as digital content and digital services will be subject to the same rules as all other goods and services covered by the rules implementing the Consumer Rights Directive (Section 2b, Title 5 of Book 6 of the DCC). This section particularly governs the precontractual information requirements for the trader and the right of withdrawal requirements. The new definitions are included in Art. 6:230g (1) DCC.

However, for goods with digital elements and digital content and digital services, additional information requirements for traders apply which have been implemented in Art. 6:230l (g) and (h) and 6:230m (r) and (s) DCC.

These stipulate that, before conclusion of the contract, the trader must inform the consumer about the following:

• where applicable, the functionality of the goods with digital elements or of the digital products, including applicable technical protection measures; and
• where applicable, and where material, the compatibility and interoperability of the goods with digital elements or digital products, to the extent that this information is known or ought to be known by the trader.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

Yes, the (amended) Consumer Rights Directive applies to contracts for the provision of digital services for which the consumer does not pay a price but provides personal data to the trader.

This also applies to contracts for the provision of personal data which is not stored on a tangible medium, for which the consumer provides personal data in return. Provision by the consumer also occurs when the trader sets cookies or collects metadata, provided that the acts in question are to be regarded as the conclusion of a contract (i.e. provision of personal data in exchange for delivery of content or services).

However, the Consumer Rights Directive does not apply if the trader processes the personal data provided by the consumer for no other purpose than supplying the digital content or for complying with legal requirements to which the trader is subject or if only metadata is collected.

All the Articles included in Section 2B, Title 5 of Book 6 of the DCC will now be applicable to contracts for the provisions of digital content and digital services for which the consumer does not pay a price, but provides personal data to the consumer (unless an exception applies). The relevant stipulations will be implemented in Art. 6:230h (1) DCC.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

Traders will have to provide their geographical address, email address and telephone number to the consumer when concluding a distance or off-premise contract. The obligation to indicate the fax number is no longer applicable. In addition, information about other means of communication that enable consumers to store correspondence with the trader on a durable medium must also be provided now. (Art. 6:230m (1) (c) DCC).

Besides, there is a new information obligation in Art. 6:230m (1) (u). Pursuant to this new sub (u), traders must inform the consumers if they have personalised the price of the specific product/service on the basis of automated decision-making. The information must be provided in a clear and comprehensible manner before the conclusion of the contract with the consumer. This information obligation does not apply to so-called dynamic of real-time offers, provided that those techniques do not involve personalisation based on automated decision-making.

Where there is only limited space or time to display the information, the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and the conditions of termination of indeterminate contracts must be indicated (Art. 6:230 (5) DCC). However, the trader must still provide the other mandatory information, including the model withdrawal form, in an appropriate manner.

The model withdrawal forms and model withdrawal instructions will also be amended. In the model withdrawal instructions for distance and off premise contracts, the reference to contact or withdrawal by fax is no longer included. Likewise, the fax number is no longer to be indicated in the model withdrawal form. On the other hand, it is now mandatory to indicate the telephone number in the withdrawal instructions, whereas previously this has only been required if a telephone number was in fact available. Because the DCC refers to Annex I of the Consumer Rights Directive (Art. 6:330n (1), 6:230o (3), 6:230m (1) DCC), the DCC is not updated in this regard.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

Pursuant to the new Art. 6:230m (3) DCC, information obligations apply to operators of online marketplaces. These information obligations, inter alia, include information about:

• the main parameters for determining the ranking presented to the user;
• whether the third party offering their goods, services or digital product is a trader or not;
• the non-applicability of consumer protection law if the third party offering the goods, services or digital product is not a trader; and
• where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital product and the operator of the online marketplace.

The Dutch legislator did not make use of the option provided in the Omnibus Directive to impose additional information requirements for providers of online marketplaces.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

After termination of the agreement, including in case of withdrawal from the agreement, traders must refrain from using content (that is not personal data) that was provided or created by the consumer when using the digital content or services provided by the trader, unless that content:

1. has no use outside the context of the relevant digital content or digital services;
2. is related exclusively to the activity of the consumer when using the relevant digital content or the digital service;
3. has been aggregated by the trader with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort; or
4. was created by the consumer together with others, provided that other consumers can continue to use the content.

The trader must, upon request, also provide the consumer with the content provided or created by the consumer (unless the first tree exceptions (1-3) as mentioned above apply), which must be done free of charge, within a reasonable period of time and in a common and machine-readable format.

The relevant changes are included in Art. 6:230r(5), (6) and (7) DCC.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

In the case of contracts where services are provided in exchange for the provision of personal data by the consumer, the right of withdrawal expires when the services are fully performed. For contracts for the provision of services for which the consumer pays a price (money), the right of withdrawal does not expire until the services have been fully perfomed and the consumer has expressly consented to the performance of the service before the expiry of the withdrawal period and acknowledged the expiry of the right of withdrawal (Art. 6:230p (1) (d) DCC).

In the case of contracts for digital content that is not delivered on a durable medium and for which no price is paid (money), the right of withdrawal expires at the beginning of the performance of the contract. If the consumer pays a price, the right of withdrawal only expires when the consumer has given prior express consent to begin the performance during the right of withdrawal period, the consumer has provided acknowledgement that the right of withdrawal will be lost, and the trader has provided confirmation of such acknowledgement to the consumer (Art. 6:230p (g) DCC).

This confirmation needs to be sent in line with Art. 6:230t (2) DCC or 6:230v (7) DCC, meaning that the confirmation should be provided in writing or on a durable medium.

VII. What penalties can be imposed for infringements of consumer rights?

Current Dutch law contains penalty provisions applicable to infringements of the national provisions adopted pursuant to the Consumer Rights Directive. Pursuant to Art. 2.15 of the Dutch Consumer Protection Enforcement Act, the relevant enforcement authorities (the Authority for Consumers and Markets (ACM) and the Authority for the Financial Markets (AFM)) can impose administrative fines or orders subject to a penalty amounting to a maximum of EUR 900,000 or, if higher, 1% of the turnover (or 10% in situations where the contractual terms are expressly defined as unfair in all circumstances).

Under the amended Art. 2.15 of the Dutch Consumer Protection Enforcement Act, fines can also be imposed for intentional or negligent widespread infringements and infringements with an EU dimension of inter alia unfair commercial practices.

For the changes to the relevant Articles of the Dutch Consumer Protection Enforcement Act, please review the input above under 'Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)'.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Optional provisions/deviations:

• Art. 8b para. 2 Unfair Contract Terms Directive: No use was made of the option to restrict penalties to situations where the contractual terms are expressly defined as unfair in all circumstances.
• Art. 6bis (3), (4), and (5) Price Indication Directive: The Netherlands has used the three options to exempt certain products or practices from the obligation to indicate the prior price when announcing a price reduction.
• Art. 8ter (1) and (2) Unfair Contract Terms Directive: No use was made of the optional limitations.
• Art. 3 (5) Unfair Commercial Practices Directive: The Netherlands has not used the options to regulate new obligations for consumer protection against unfair practices in commercial excursions or in the context of doorstep selling.
• Art. 11bis (1) and (2) Unfair Commercial Practices Directive: The Netherlands has not used the option determine (further) conditions for the application and effect of remedies. The Dutch legislator stated that remedies are adequately regulated in Dutch law.
• Art. 13 (3) Unfair Commercial Practices Directive: No use is made of the option to limit fines to breaches of certain provisions of the Directive. The Netherlands also did not use the option to regulate higher maximum fines than the ones provided for in the Directive.
• Art. 6bis (2) Consumer Rights Directive: No use was made of the option to add additional precontractual information obligations to online marketplaces.
• Art. 9 (1a) Consumer Rights Directive: No use was made of the option to extend the withdrawal period for consumer contracts concluded on occasion of doorstep selling or commercial excursions to 30 days.
• Art. 16 (2) Consumer Rights Directive: No use was made of the option to derogate from some of the exceptions from the right of withdrawal set out in Art. 16 (1) for contracts concluded in the context of doorstep selling or commercial excursions.
• Art. 16 (3) Consumer Rights Directive: The Netherlands has not used the option to provide that in the case of service contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs, the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer's prior consent.
• Art. 24 Consumer Rights Directive: The Netherlands has not used the option to regulate higher maximum fines than the ones provided for in the Directive.

Noteworthy points arising from legislative changes

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