24 AOUT 2005. - Act to transpose certain provisions of the Remote Financial Services Directive and the Privacy and Electronic Communications Directive

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - Introductory provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It transposes Directive 2002/65/EC of the European Parliament and the Council of 23 September 2002 on the remote marketing of financial services to consumers, and amends Council Directives 90/619/EEC, 97/7/EC and 98/27/EC, and Article 13 of the Directive 2002/58/EC of the European Parliament and the Council of 12 July 2002 on the processing of personal data and privacy in the electronic communications sector.
CHAPTER II. - Amendments to the Act of 14 July 1991
Trade and Information Practices
and consumer protection
Section 1^re. - Insertion of an article 29bis in Chapter IV
Advertising
Art. 2. An article 29bis, as follows, is included in the Act of 14 July 1991 on trade practices and information and consumer protection:
"Art. 29bis. § 1^er. The use of automated call systems without human intervention and fax machines for personalized advertising purposes is prohibited, without the prior, free, specific and informed consent of the recipient of the messages. The King may, by deliberate decree in the Council of Ministers, extend this prohibition to other communication techniques, taking into account their evolution.
Derogation from paragraph 1^er, and without prejudice to § 4, paragraph 2, any issuer shall be exempt from soliciting from legal persons the prior consent to receive advertisements by means of the techniques referred to in paragraph 1^er.
Without prejudice to section 14 of the Act of 11 March 2003 on certain legal aspects of the services of the information society, personalized advertisements, broadcast by other techniques than those referred to in paragraph 1^er may be so only in the absence of a manifest object of the recipient, a natural or legal person. No fee may be charged to the recipient because of the exercise of his right of opposition.
§ 2. When sending any advertisement using a communication technique referred to in § 1^erParagraph 1^er, the issuer provides clear and understandable information about the right to object, for the future, to receive advertisements.
§ 3. When sending any advertisement using a communication technique referred to in § 1^er, paragraph 3, it is forbidden to conceal the identity of the seller on whose behalf the communication is made.
§ 4. The burden of proof of the solicited character of the advertisement sent by means of a communication technique referred to in § 1^erParagraph 1^er, is the responsibility of the message transmitter.
Any person may notify a specified issuer directly, without charge or reason, of his or her desire to no longer receive advertisements sent by means of a technique referred to in § 1^erParagraph 1^er. »
Section 2. - Amendments to Chapter VI, Section 9
Remote contracts
Art. 3. It is included in Chapter VI, Section 9 - Distance contracts, of the same Act, a first sub-section, including section 77, with the following title: "Sub-section 1. Definitions".
Art. 4. In section 77 of the Act, replaced by the Act of 25 May 1999, the following amendments are made:
1° the 4° of § 1^er is replaced by the following provision:
"4° Financial service: any service related to the bank, credit, insurance, individual pension, investment and payments; »;
2° § 1^er is completed as follows:
"5° sustainable support: any instrument that allows the consumer to store information that is addressed to him personally in a way that makes it easy to refer to it in the future for a period of time adapted for the purpose to which the information is intended and that allows the identical reproduction of the information stored.
6° supplier: any vendor who is the contractual provider of remotely contracted services. »
3° § 2 is replaced by the following provision:
"The King may complete, replace or amend the definitions given in § 1^er. "
Art. 5. It is included in Chapter VI, Section 9 - Distance contracts, of the same Act, a subsection 2, including sections 78 to 83, with the following title: "Subsection 2. Remote contracts not related to financial services."
Art. 6. In section 81 of the Act, replaced by the Act of 25 May 1999 and amended by the Act of 17 July 2002, §§ 2 and 5 are repealed.
Art. 7. Sections 82 and 83 of the Act, replaced by the Act of 25 May 1999, are repealed.
Art. 8. It is included in Chapter VI, Section 9 - Distance contracts, of the same law, a subsection 3, including sections 83bis to 83octies, with the following title:
"Subsection 3. Remote financial services contracts »
Art. 9. An article 83bis, as follows, is inserted in the same law:
"Art. 83bis. For contracts relating to financial services with a first service agreement followed by successive transactions or a series of separate transactions of the same nature that have been phased over time, the provisions of this subsection apply only to the first agreement.
In the event that there is no first convention, but where the successive or separate transactions of the same nature are carried out over time between the same parties to the contract, sections 83ter and 83quater are applicable only when the first operation is performed. However, in cases where no such transaction is carried out for more than one year, the following operation is considered to be the first in a new series of operations, to which sections 83ter and 83quater apply. »
Art. 10. An article 83ter, as follows, is inserted in the same law:
"Art. 83ter. § 1^er. In due course, before the consumer is bound by a contract or offer, he must be informed unequivocally, in a clear and understandable manner, by any means adapted to the remote communication technique used, at least on the following:
1° the supplier
(a) the identity of the supplier, including its business number, main activity, geographic address, and any other geographic address to be taken into account in the relationship between the consumer and the supplier;
(b) in the case where the supplier is represented in Belgium, the identity of that representative, and the geographic address to be taken into account in the relations between the consumer and the representative;
(c) if the consumer has relations with a seller other than the supplier, the identity of that seller, the quality in which it acts with respect to the consumer and the geographic address to be taken into account in the relations between the consumer and that seller;
(d) where the activity of the supplier and/or seller is subject to an authorization regime, the contact information of the competent supervisory authority;
2° the financial service
(a) a description of the main characteristics of the financial service;
(b) the total price due by the consumer to the seller for the financial service, including all related remuneration, expenses and expenses, and all taxes and taxes payable through the seller or, where an exact price cannot be indicated, the basis for calculating the price, allowing the consumer to verify it;
(c) where appropriate the indication that the financial service is linked to instruments that involve particular risks due to their specificities or operations to be performed or whose price depends on fluctuations in the financial markets on which the supplier has no influence, as well as the indication that past performance cannot give any guarantee as to future performance;
(d) the indication of any other taxes, taxes and/or fees that are not paid through the seller;
(e) any limitation of the validity of the information provided;
(f) payment and execution modes;
(g) any specific additional cost to the consumer related to the use of the remote communication technology, where this additional cost is charged;
3° the contract remotely
(a) the existence or absence of the right to waiver referred to in article 83sexies and, if that right exists, its duration and the terms of its exercise, including information on the amount that the consumer may be required to pay on the basis of article 83ssepties, § 1^eras well as the consequences arising from the lack of exercise of this right;
(b) the minimum length of the distance contract, in the case of a permanent or periodic provision of financial services;
(c) information on the rights that parties may have to terminate the contract in advance or unilaterally under the terms of the distance contract, including any termination allowances imposed by the contract;
(d) practical instructions for the exercise of the right to waiver indicating, inter alia, the address to which the notification must be sent;
(e) the legislation(s) on which the seller is based to establish relations with the consumer prior to the conclusion of the contract;
(f) any contractual clause concerning the law applicable to the contract and/or the competent court;
(g) the language or languages in which the terms and conditions of the contract are communicated and the prior information referred to in this section and, in addition, the language or languages in which the seller undertakes, in agreement with the consumer, to communicate during the period of the contract;
4° the appeal
(a) the existence or absence of alternative consumer-accessible claims and appeals procedures that are a party to the remote contract and, if such procedures exist, their terms and conditions of access;
(b) the existence of security funds or other compensation mechanisms, not covered by the Directive 94/19/EC of the Parliament and the Council of 30 May 1994 on deposit guarantee systems and Directive 97/9/EC of the Parliament and the Council of 3 March 1997 on investor compensation systems.
§ 2. Information relating to contractual obligations, to be communicated to the consumer in a pre-contractual phase, shall be in conformity with the contractual obligations that would result from the presumed law applicable to the remote contract in the event of its conclusion. »
Art. 11. An article 83quater, as follows, is inserted in the same law:
"Art. 83quater. In the case of voice communication, the seller's identity and the commercial purpose of the call must be clearly and explicitly indicated at the beginning of any conversation with the consumer.
Subject to the formal consumer agreement, only the following information shall be provided:
a. the identity and quality of the person in contact with the consumer and its connection with the supplier;
b. a description of the main characteristics of the financial service;
c. the total price due by the consumer to the seller for the financial service, including all related remuneration, expenses and expenses, and all taxes and taxes to be paid through the seller or, where an exact price cannot be indicated, the basis for calculating the price, allowing the consumer to verify it;
d. the indication of any other taxes, taxes and/or fees that are not paid through the seller;
e. the existence or absence of the right to waiver provided for in section 83sexies and, if this right exists, its duration and the terms of its exercise, including information on the amount that the consumer may be required to pay on the basis of section 83septics, § 1^eras well as the consequences arising from the lack of exercise of this right.
The seller informs the consumer about, on the one hand, the fact that other information can be provided on request and on the other hand, the inform of the nature of this information. In any event, the seller provides complete information when fulfilling its obligations under section 83quinquies. »
Art. 12. An article 83quinquies, as follows, is inserted in the same law:
"Art. 83quinquies. § 1^er. The seller shall communicate to the consumer all the contractual conditions and the information referred to in Article 83ter, § 1^er, on paper or other durable support, made available to the consumer and to which the consumer has access, in a timely manner before being bound by a remote contract or by an offer.
§ 2. The seller fulfils its obligation under § 1^er immediately after the conclusion of the remote contract, if the contract was concluded at the consumer's request using a remote communication technique that does not allow to transmit the contractual conditions and information in accordance with § 1^er.
§ 3. At any time during the contractual relationship, the consumer has the right, if requested, to receive the contractual conditions on paper. In addition, the consumer has the right to change the remote communication technologies used, unless it is incompatible with the distance contract entered into or with the nature of the financial service provided. »
Art. 13. An article 83sexies, as follows, is inserted in the same law:
"Art. 83sexies. § 1^er. The consumer has 14 calendar days to waive the distance contract for a financial service. This right is exercised without penalties and without any indication of reason.
For the exercise of this right the short period:
- from the day the remote contract is concluded,
- from the day on which the consumer receives the contractual conditions and information, in accordance with Article 83quinquies, § 1^er or § 2, if the last date is after the date referred to in the first dash.
§ 2. The right to waiver does not apply:
1° to financial services whose price depends on fluctuations in the financial market on which the supplier has no influence, and which are likely to occur during the waiver period.
This applies in particular to services related to:
- exchange transactions,
- monetary instruments,
- negotiable securities,
- shares in collective investment companies,
- future financial contracts including equivalent instruments resulting in a cash settlement,
- futures contracts on interest rates ("FR"),
- exchange contracts ("interchanges") on interest rates or foreign exchange contracts and exchange contracts on shares or equity indices ("equitable swaps")
- options to purchase or sell the instruments covered by this item, including equivalent instruments resulting in a cash settlement, in particular currency options and interest rates;
2° to contracts executed in full by both parties at the express request of the consumer before the consumer exercises his right to waiver;
3° to mortgage credit contracts subject to the Law of 4 August 1992 on mortgage credit.
§ 3. If another contract for financial services presumed by a supplier or a third party on the basis of an agreement between the third party and the seller has been added to a remote contract for a particular financial service, this additional contract shall be terminated, without penalty, if the consumer exercises his right to waiver referred to in § 1^er. »
Art. 14. Article 83septics, as follows, is inserted in the same law:
"Art. 83s. § 1^er. During the waiver period, the execution of the contract can only begin after the consumer's agreement.
Where the consumer exercises the right to waiver referred to in section 83sexies, § 1^er, it can only be held upon payment, as soon as possible, of the financial service actually provided by the supplier under the remote contract.
The amount payable cannot:
- exceed a proportional amount to the importance of the service already provided in relation to all the benefits provided by the remote contract;
- in no case be such that it can be interpreted as a penalty.
§ 2. The supplier may not require payment by the consumer on the basis of § 1^er that if it can prove that the consumer has been duly informed of the amount due, in accordance with section 83ter, § 1^er, 3°, a). In no case may he require payment if he has begun to execute the contract before the expiry of the waiver period provided for in section 83sexies, § 1^erwithout prior consumer demand.
§ 3. The supplier is required to refund to the consumer, as soon as possible and no later than 30 calendar days, all amounts collected from the consumer in accordance with the distance contract, with the exception of the amount referred to in § 1^er. This period begins on the day the supplier receives notification of the waiver.
§ 4. The consumer shall return to the supplier, as soon as possible and no later than 30 calendar days, any sum and/or property received by the supplier. This period begins to run from the day the consumer sends the notification of waiver. »
Art. 15. An article 83octies, as follows, is inserted in the same law:
Art. 83octies. § 1^er. The supplier is responsible to the consumer for complying with the obligations of sections 83ter to 83quinquies.
§ 2. In case of non-compliance with the obligations of articles 83ter, § 1^er, 2° and 3°, 83quater, and 83quinquies, the consumer may terminate the contract without fees or penalties per registered letter and motivated within a reasonable period of time from the time he or she is aware of or should have known of the non-compliance. »
Art. 16. It is included in Chapter VI, Section 9 - Remote contracts, of the same law, a sub-section 4, including sections 83novies to 83undecies, with the following title:
"Subsection 4. Provisions common to this section".
Art. 17. An article 83novies, as follows, is inserted in the same law:
"Art. 83novies. In the event of fraudulent use of an electronic transfer instrument, referred to in Article 2, 1°, (a), (b), and (c), of the Act of 17 July 2002 relating to transactions carried out by means of electronic transfer instruments of funds, or a refillable instrument whose value may be stored is greater than the amount referred to in Article 8, § 3, of the same law in the context of a contract at distance and In the event of cancellation, the issuer shall return the sums paid within the shortest time limit. »
Art. 18. An article 83decies, as follows, is inserted in the same law:
"Art. 83decies. § 1^er. It is the responsibility of the seller to provide evidence that it has met the obligations relating to consumer information, compliance with deadlines, consumer consent to the conclusion of the contract and, where applicable, its enforcement during the waiver period. In the case of remote financial services contracts, this evidence is the responsibility of the supplier.
The terms and conditions or combinations of clauses and conditions that are intended to provide the consumer with proof of compliance with all or part of the obligations referred to in this section, involving the seller, and in the case of remote contracts relating to financial services to the supplier, are prohibited and void.
§ 2. Any clause by which the consumer waives the rights conferred on him by this section is deemed to be non-written.
§ 3. A clause declaring applicable to the contract the law of a third State to the European Union is prohibited and void in respect of matters governed by this section when, in the absence of this clause, the law of a Member State of the European Union would be applicable and that this law provides greater protection to the consumer in such matters.
§ 4. The delivery of representative goods and securities of services is always at the seller's risk and, in the event of remote contracts involving financial services, at the supplier's risk. »
Art. 19. An article 83undecies, as follows, is inserted in the same law:
"Art. 83undecies. § 1^er. In this section, the King may:
1° prescribing specific provisions for certain remote communication technologies, taking into account the specificities of small and medium-sized enterprises where applicable;
2° exclude from the scope of this section or from certain provisions that it designates the products or categories of products that it designates;
3° exclude from the scope of this section or from certain provisions that it designates the services or categories of services that it designates;
4° prescribe special provisions for the products or categories of products that it designates;
5° prescribe special provisions for the services or categories of services it designates;
6° prescribe special provisions for public sales organized by means of a remote communication technique.
§ 2. Before proposing an order pursuant to sections 77 to 83undecies of this section, the Minister shall consult with the Council of Consumer Affairs and the Higher Council of Independents and P.M.E. and shall determine the time limit within which the notice must be given. After this period, the notice is no longer required. »
Art. 20. Section 102, paragraph 1, 6bis, of the Act, inserted by the Act of 25 May 1999, is replaced by the following text:
"6bis. articles 78 to 83decies relating to remote contracts, and decrees taken under article 83undecies; "
CHAPTER III. - Amendments to the Consumer Credit Act of 12 June 1991 and the Act of 24 March 2003 amending the Act of 12 June 1991
Art. 21. In article 3, paragraph 2, paragraph 2, of the law of 12 June 1991 on consumer credit, inserted by the law of 24 March 2003, the words "14, § 3, 1° to 6°" are replaced by the words "14, § 2, 1° to 6°".
Art. 22. Section 14 of the Act, amended by the Acts of 7 January 2001, 10 August 2001 and 24 March 2003 and by the Royal Decree of 4 April 2003, are amended as follows:
1° to § 1^er the words "and section 83quinquies of the Act of 14 July 1991 on trade practices and information and consumer protection" are inserted between the words "of Article 45, § 2, of this Law" and the words ", the contract of credit is concluded";
2° § 2, paragraph 1^er, 13°, is replaced by the following provision:
"13° according to the credit contract, an unambiguous, clear and precise description of the right and the terms and conditions of waiver or withdrawal of the credit contract in accordance with sections 18 and 20bis and section 83sexies of the Act of 14 July 1991 on trade practices and information and consumer protection. »
Art. 23. In Article 18, § 4, of the same Law, replaced by the Act of 24 March 2003, the words " referred to in Article 20bis, paragraph 1^er » are deleted.
Art. 24. In section 20bis of the Act, inserted by the Act of 24 March 2003, the following amendments are made:
1° in paragraph 1^er the words "before the signature of the credit contract by the consumer and as long as the consumer has the credit contract at the time of delivery" are replaced by the words "before the conclusion of the credit contract and as long as the consumer has, in due time before delivery, the contractual conditions and the information referred to in article 83quinquies, § 1^erthe Law of 14 July 1991 on Trade Practices and Consumer Information and Protection";
2° in paragraph 2, the words "applicable to remote sale, referred to in the law on trade practices" are replaced by the words "subject to section 80 of the Act of 14 July 1991 on trade practices and information and consumer protection";
3° the same paragraph is completed as follows: ", without penalties or allowances".
Art. 25. In section 41, 8°, of the same law, as amended by the Act of 24 March 2003, the words "of possible reduction or restitution" are replaced by the words "as defined in section 23, § 1^er "
Art. 26. Article 49, § 3, 6°, of the same law, replaced by the law of 24 March 2003, is supplemented as follows: "and the terms referred to in Article 23, § 1^er "
Art. 27. In section 56, 6°, of the same law, as amended by the Act of 24 March 2003, the words "of possible reduction or restitution" are replaced by the words "subject to section 23, § 1^er "
Art. 28. In article 75, § 6, of the same law, the words "at § 3, 1° and 3°" are replaced by the words "at § 3, 1° to 1° and 3°".
Art. 29. In Article 75bis, § 1^er, last paragraph of the Act, as amended by the Act of 24 March 2003, the last sentence is repealed.
Art. 30. In section 78, § 2, of the same Act, as amended by the Act of 24 March 2003, the words "Accreditation or registration may be refused or withdrawn" are replaced by the words "Accreditation or registration may be refused, suspended, withdrawn or terminated".
Art. 31. Article 87, paragraph 1^er, 4°, of the same law, is replaced by the following provision:
"4° a credit contract was concluded:
(a) by an unregistered or unregistered lender;
(b) using an unregistered credit intermediary;
(c) by a lender whose approval has been withdrawn or suspended or who has incurred a prohibition under section 75bis, §§ 1^er or 3;
(d) using a credit intermediary whose registration has been terminated or suspended. »
Art. 32. In Article 101, § 1^er, 1°, c), of the same law, inserted by the law of 11 February 1994, the words "artikel 75bis" are inserted into the Dutch text between the words "op grond van" and the words "§ 1, leden 4 in 5".
Art. 33. In Article 52, 2°, of the Act of 24 March 2003 amending the Act of 12 June 1991 on consumer credit, the words "of § 2, paragraph 2" are replaced by the words "of § 3, paragraph 2".
CHAPTER IV. - Amendments to the Act of 25 June 1992 on the land insurance contract
Art. 34. Section 4 of the Land Insurance Contract Act of 25 June 1992 is amended as follows:
1° in § 2, the words "for a period of thirty days" and "within thirty days" are replaced by the words "within thirty days for life insurance contracts and fourteen days for other insurance contracts";
2° it is inserted a § 2bis, written as follows:
Ҥ 2bis. Any distance insurance contract, within the meaning of Chapter VI, Section 9, of the Act of 14 July 1991 on trade practices and information and consumer protection, is concluded when the insurer receives the acceptance of the insurance licensee.
The insurance taker and insurer have a period of fourteen days to terminate the insurance contract, without penalty and without any obligation of motivation. However, for life insurance contracts, this period is extended to 30 days.
The endeavorable period that can exercise the right of termination begins to run:
- from the day of the conclusion of the insurance contract, except for life insurance contracts, for which the period begins to run at the time the insurance taker is informed by the insurer that the insurance contract has been concluded;
- from the day on which the insurance taker receives the contractual terms and any other additional information, if the latter day is after the first dash.
Termination from the insurance licensee shall take effect at the time of notification, that from the insurer eight days after notification.
The right of termination does not apply to travel or baggage insurance policies or similar short-term insurance policies of less than one month, or to life insurance contracts related to an investment fund. »
Art. 35. In Article 10, § 3, of the same Law, the words "certified in conformity" are deleted.
Art. 36. In section 18, paragraph 1^er, from the same law the words "within fifteen days from the taking of effect of termination" are replaced by the words "within thirty days from the taking of effect of termination or, in the case of application of Article 4, § 2bis, from the date of receipt by the insurer of the notification of termination".
CHAPTER V. - Entry into force
Art. 37. This Act comes into force on the first day of the fifth month following the one in which it was published in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, August 24, 2005.
ALBERT
By the King:
For the Minister of Employment,
responsible for Consumer Protection, absent,
Minister of Budget and Public Enterprises,
J. VANDE LANOTTE
Minister of Economy,
Mr. VERWILGHEN
Minister of Average Class,
Mrs. S. LARUELLE
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
Documents of the House of Representatives. - 51-1776 - 2004-2005: Bill 1. - n^bones 2 and 3: amendments. - Number four: report. - No. 5: text adopted by the commission. - No. 6: text adopted in plenary and transmitted to the Senate.
Full report. - 30 June 2005.
Document of the Senate. - 3-1270 - 2004-2005. - No. 1: Project not referred to by the Senate.