6 questions on the new Portuguese Decree-Law that will regulate the purchase and sale of goods
On 18 October 2021, the Portuguese Decree-Law No. 84/2021 was published in the Diário da República, which transposes two European Union directives regarding consumer law, and which will come into force on 1 January 2022.
This Decree-Law therefore regulates consumer rights in the purchase and sale of digital goods, content and services, revoking the Decree-Law that regulates the sale of consumer goods and guarantees and, even if only partially, the Portuguese Consumer Protection Law.
In this context, we have prepared this information, with brief indications on the new legal framework of the subject under analysis.
- How long is the legal guarantee provided for goods?
The trader will be liable for any lack of conformity of the good which becomes apparent within three years of delivery of the good. However, in the third year, the consumer will bear the burden of proof as to the existence of the lack of conformity.
In this context, it is important to note that in the definition of goods is included, according to the diploma under analysis, any tangible movable good that incorporates or is interconnected with a digital content or service, in such a way that the lack thereof prevents the goods from performing their functions (“goods with digital elements”.
- What rights does the law confer on the consumer in the event of lack of conformity of a good?
In the event of lack of conformity, the consumer is entitled to repair or replacement of the good, to a proportional reduction of the price or to termination of the contract. In the legal diploma currently in force on the same subject (i.e. Decree-Law 67/2003 of 8 April), the consumer may choose any of these rights, limited only by impossibility and abuse of rights. As for the new diploma, the consumer may only choose between repair or replacement. Thus, the right to proportional reduction of the price and termination of the contract may only be used by the consumer, alternatively, and in accordance with the criteria expressly provided for by law.
- Is after-sales service and availability of components legally required?
It follows from the legal diploma recently published in Diário da República, that the producer is obliged to provide the necessary parts for the repair of the goods purchased by the consumer, during the 10 years following their placement on the market, even if against payment of a monetary amount.
Additionally, in the case of goods subject to registration, the trader must guarantee after-sales assistance, also for a period of 10 years after the goods have been placed on the market.
In both cases, the economic operator must inform the consumer of the existence and duration of each of these obligations.
- What is the legal guarantee period for real estate?
It follows from the new Decree-Law that the professional is liable to the consumer for any lack of conformity that exists when the property is delivered to him, which becomes apparent within a period of 10 years, in relation to lack of conformity concerning structural construction elements, or 5 years, in relation to other lacks of conformity.
In this case, there is no hierarchy of rights granted to the consumer, who may choose repair, replacement, proportionate reduction of the price or termination of the contract, whichever is most convenient.
- Are digital content and services excluded from the scope of the Diploma?
No, the legal diploma recently published in Diário da República provides for a specific regime applicable to digital content and services, which establishes a supply obligation for the economic operator. Such obligation means making available to the consumer
(a) the digital content or the appropriate means to access the digital content or to download it;
(b) access to the digital content or to a physical or virtual location chosen by the consumer for that purpose; or
(c) access to the digital service or to a physical or virtual facility chosen by the consumer for that purpose.
In addition, there are also objective and subjective requirements for conformity of the contents or services, among which we highlight the obligation to provide updated contents or services, and the obligation to provide them with the accessories and instructions which the consumer may reasonably expect.
- Under what terms are online marketplace providers liable?
According to the Decree-Law under analysis, the online marketplace provider who is the contractual partner of the professional providing a digital good, content or service, is jointly liable towards the consumer for the lack of conformity.
In this context, the online marketplace provider who has a predominant influence on the conclusion of the contract will be a contractual partner, which will occur in the cases provided for by law.
In any case, even if the online marketplace provider is not the contractual partner of the professional who provides the good, content or service, the latter must, prior to the conclusion of the contract, inform consumers clearly and unambiguously that the contract will be concluded with a professional and not with the online marketplace provider; of the identity of the professional, as well as of its status as a professional or, if this is not the case, of the non-application of the rights provided for in this decree-law; and of the professional’s contact details for the purposes of exercising the rights provided for in the decree-law under analysis.