A new Law for the provision of digital content and digital services and for the sale of goods (the "Law") entered into force on 1st January 2022 in Bulgaria. Among the introduction of specific rules with respect to the supply of digital content and digital services to consumers, the Law provides for new regulations on the conformity of goods and remedies in the event of lack of conformity. The new rules transpose Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods and aim to lay down a harmonized legal framework across all sales channels and avoid any divergence that could create disproportionate burdens for the growing number of omnichannel retailers in the European Union.
Among other novelties, the Law strengthens the importance of the aftersales commitments made via public statements. Thus, a good would be deemed non-compliant and subject to warranty repair if it is not of the quality and does not have the features, including in relation to durability, functionality, compatibility, and security which the consumer may reasonably expect given the nature of the goods and taking into account any type of public statements made by or on behalf of any person involved in the supply chain of the product to the final consumer. The seller (but only him) may claim that he is not bound by such public statements if he was not and could not have been reasonably aware of them; or by the time of conclusion of the contract, the public statement had been corrected; or the decision to buy the goods could not have been influenced by the respective public statement. Such an approach to public statements is not completely new, as the Bulgarian law even before the Law became effective provided for such liability. However, the Law significantly broadens the scope, because, under the previously applicable rules, a consumer could claim unconformity only with respect to claims made by the seller, the manufacturer, or its representative and only in an ad and/or in the label of the good.
The Law also places a considerable emphasis on commercial guarantee claims provided in an ad. Pursuant to the new rules, a commercial guarantee shall be binding on the guarantor under the conditions laid down in the commercial guarantee statement or associated advertising available at the time, or before the conclusion of the contract. The Law explicitly provides, conversely to the previously applicably framework, that if the conditions specified in the commercial guarantee statement are less advantageous to the consumer than those outlined in associated advertising, the commercial guarantee shall bind the advertiser under the conditions outlined in the ad, unless, before the conclusion of the contract, the associated advertising was corrected in the same way or in a comparable way to that in which it was made.
The Law aims to ensure that any publicly made statements for quality or features of the goods shall be binding for the merchants. The development of the e-commerce channel and all alternative forms for b2c communication made it easier for the merchants to reach out to the consumers but this may allow them to circumvent some consumer protection requirements that were developed for much less digitalized commerce. Also, the new rules shall combat the practices where merchants make ambiguous guarantee claims in ads aiming to attract the consumers but when the product is purchased, they try to slip off their liability by claiming that this was only an ad, and the aftersales relation are regulated only by the rules of the guarantee statement.
The purpose of the Law is to cater for protecting the consumers in those cases where although it is not possible or too ambitious for a misleading advertisement to be claimed, there still might be a risk for the consumers. This is a specific advantage for this country as under Bulgarian law misleading advertisement is considered as a form of unfair competition practice and in case no harm to the competitors can be established, the competent authority cannot intervene. Under the new rules, the consumers shall have an additional option for protection of their aftersales rights.
