Does a foreign webshop have to respect the Belgian right of withdrawal?

Antwerp Court of Appeal protects Belgian consumers in cross-border online purchases

On Oct. 14, 2024, the Antwerp Court of Appeal issued a ruling on consumer rights in international e-commerce. In this case between a German company and a Belgian consumer, the Court confirmed that Belgian consumer law continues to apply despite contrary provisions in the general terms and conditions of the trading platform.

Key points of the case: right of withdrawal and reservation fees

The case revolved around a tractor that a Belgian consumer had purchased for €415,000 through the online platform technikboerse.com. The consumer paid €20,000 to the German company, after which the company considered this amount to be a "reservation price." When the consumer exercised his right of withdrawal within the legal deadline, the company refused to refund this €20,000.

Legal questions about international online purchases

The Court answered four crucial questions for e-commerce across national borders:

1. Which court has jurisdiction? Can a forum selection clause force Belgian consumers to go to a foreign court?
2. Which law applies? Does Belgian or foreign law apply to online purchases?
3. What is a remote sale? When is an online purchase with the right of withdrawal?
4. Are reservation fees allowed? Can web shops charge fees for withdrawal?

Jurisdiction remains in Belgium for international webshops

The court ruled that the Belgian courts retained jurisdiction despite the Munich forum selection clause in the general terms and conditions. According to the Brussels Ibis Regulation (Articles 17-19):

• A consumer can be sued only in courts in his own country
• A seller directing its activities to the Belgian market accepts the jurisdiction of Belgian courts
• Forum selection clauses in general terms and conditions cannot erode consumer rights

Belgian consumer law applicable

The Court confirmed that Belgian law continued to apply, despite the choice of German law in the terms and conditions:

• The Rome I Regulation (Article 6) protects consumers by applying the law of their domicile
• A foreign webshop targeting Belgian consumers must respect Belgian consumer law
• Choice of law clauses cannot circumvent protection of local consumer laws

Right of withdrawal for online purchases remains intact

A key finding was that this was a distance sale with full right of withdrawal:

• Even though the consumer had viewed the tractor beforehand, the contract itself was concluded remotely (via e-mail)
• As a consumer, the buyer was entitled to a withdrawal period of 14 calendar days (art. VI.47 Code of Economic Law)
• This right of withdrawal was timely and properly exercised by the consumer

No reservation fee on withdrawal allowed

The Court rejected the concept of "reservation fee" as a non-refundable cost:

• A unilateral statement on an invoice does not create a binding contract
• There was no evidence of a separate agreement on these costs
• Such provisions would violate the statutory right of withdrawal (Art. VI.63 WER)
• Upon revocation, the consumer does not owe any costs unless specifically provided for by law

What does this mean for online shoppers and web shops?

For consumers

As a Belgian consumer, you are better protected than you may have thought:

• You can start proceedings against foreign webshops before Belgian courts
• Belgian consumer law protects you when buying from foreign online sellers
• Your 14-day right of withdrawal remains guaranteed regardless of what the terms and conditions say
• Reservation fees, cancellation fees or other additional charges on withdrawal are unlawful

For enterprises

If you operate a web shop that sells to Belgian consumers:

• Know that Belgian consumers can sue you in Belgian courts
• Belgian consumer law applies even if your terms and conditions state otherwise
• You cannot charge a reservation fee or other fees for withdrawal
• Your general terms and conditions must comply with Belgian law

Need legal advice on e-commerce and consumer law?

Do you have questions about your rights when purchasing online? Or are you a business owner who wants to set up his web shop legally correctly? Our law firm specializes in:

• Consumer law and right of withdrawal for international purchases
• Assistance with disputes with foreign web shops
• Recovery of amounts unduly withheld
• Advice for online entrepreneurs on legal obligations
• Drafting correct general terms and conditions for e-commerce