ACT No. I of 2022 An ACT to amend the Consumer Affairs Act, Cap. 378.

I assent.

(L.S.)

GEORGE VELLA

President

14th January, 2022

ACT No. I of 2022

An ACT to amend the Consumer Affairs Act, Cap. 378.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows

(1) The short title of this Act is the Consumer Affairs

commencement.

(Amendment) Act, 2022 and this Act shall be read and construed as

one with the Consumer Affairs Act, hereinafter referred to as the

"principal Act".

(2)

This Act shall come into force on 1st January 2022.

Article 72 of the principal Act shall be amended as follows

(a)

in sub-article (1) thereof

(i)

immediately before the definition "commercial

guarantee" the following new definition shall be added

" "consumer" means any natural person who, in

relation to contracts covered by this Part, is acting for

purposes which are outside that person's trade,

business, craft or profession;";

(ii) the definition "commercial guarantee" shall be

substituted by the following

" "commercial guarantee" means any

undertaking by a seller or a producer (the guarantor)

to the consumer, in addition to the seller’s legal

obligation relating to the guarantee of conformity, to

reimburse the price paid or to replace, repair or

service goods in any way if they do not meet the

specifications or any other requirements not related

to conformity set out in the guarantee statement or in

the relevant advertising available at the time of, or

before the conclusion of the contract;";

(iii) immediately after the definition "commercial

guarantee" there shall be added the following new

definitions

" "compatibility" means the ability of the goods

to function with hardware or software with which

goods of the same type are normally used, without

the need to convert the goods, hardware or software;

"digital content" means data

which

are

produced and supplied in digital form;

"digital service" means

(a) a service that allows the consumer

to create, process, store or access data in digital

form; or

(b) a service that allows the sharing of

or any other interaction with data in digital

form uploaded or created by the consumer or

other users of that service;

"durability" means the ability of the goods to

maintain their required functions and performance

through normal use;

"durable medium" means any instrument which

enables the consumer or the seller to store

information addressed personally to that person in a

way that is accessible for future reference, for a

period of time adequate for the purposes of the

information, and which allows the unchanged

reproduction of the information stored;";

(iv) the definition "free of charge" shall be

substituted by the following

" "free of charge" means free of the necessary

costs incurred in order to bring the goods into

conformity, particularly the cost of postage, carriage,

labour or materials;";

(v) immediately after the definition "free of

charge" there shall be added the following new definition

" "functionality" means the ability of the goods

to perform their functions having regard to their

purpose;";

(vi) the definition "goods" shall be substituted by

the following

" "goods" means

(a) any tangible movable items of

property

Provided that water, gas and

electricity shall be considered as goods within

the meaning of this Part when they are put up

for sale in a limited volume or a set quantity;

(b)

tangible movable items that

incorporate or are inter-connected with digital

content or a digital service in such a way that

the absence of that digital content or digital

service would prevent the goods from

performing their functions, hereinafter referred

to as "goods with digital elements";";

(vii) immediately after the definition "guarantor"

there shall be added the following new definition

" "interoperability" means the ability of the

goods to function with hardware or software different

from those with which goods of the same type are

normally used;";

(viii) the definition "producer" shall be substituted by

the following

" "producer" means a manufacturer of goods,

an importer of goods into the European Union or any

person purporting to be a producer by placing its

name, trade mark or other distinctive sign on the

goods;";

(ix) immediately after the definition "producer"

there shall be added the following new definition

" "public auction" means a method of sale

where goods or services are offered by the seller to

consumers, who attend or are given the possibility to

attend the auction in person, through a transparent,

competitive bidding procedure run by an auctioneer

and where the successful bidder is bound to purchase

the goods or services;";

(x) the definition "repair" shall be substituted by

the following

" "repair" means in the event of lack of

conformity, the process of bringing goods into

conformity with the sales contract;";

(xi) immediately after the definition "repair" there

shall be added the following new definitions

" "sales contract" means any contract under

which the seller transfers or undertakes to transfer

ownership of goods to a consumer, and the consumer

pays or undertakes to pay the price thereof;

" "seller" means any natural person or any legal

person, irrespective of whether privately or publicly

owned, that is acting, including through any other

person acting in that natural or legal person's name or

on that person's behalf, for purposes relating to that

person's trade, business, craft or profession, in

relation to contracts covered by this Part.";

(b) sub-article (2) thereof shall be substituted by the

following

"(2) The provisions of this Part shall be applicable

to sales contracts between a consumer and a seller.";

(c) sub-article (3) thereof shall be substituted by the

following

"(3) Contracts between a consumer and a seller for

the supply of goods to be manufactured or produced shall

also be deemed sales contracts for the purposes of this

Part.";

(d) immediately after sub-article (3) thereof there shall

be added the following new sub-articles (4) and (5)

"(4) This Part shall not apply to contracts for the

supply of digital content or digital services. It shall,

however, apply to digital content or digital services which

are incorporated in or inter-connected with goods, as

defined in paragraph (b) of the definition "goods" in sub-

article (1) and are provided with the goods under the sales

contracts, irrespective of whether such digital content or

digital service is supplied by the seller or by a third party.

In the event of doubt as to whether the supply of

incorporated or inter-connected digital content or an

incorporated or inter-connected digital service forms part

of the sales contract, the digital content or digital service

shall be presumed to be covered by the sales contract.

(5)

This Part shall not apply to

(a) any tangible medium which serves

exclusively as a carrier for digital content;

(b) any goods sold by way of execution or

otherwise by authority of law; or

(c) contracts for the sale of second-hand

goods sold at public auction

Provided that in the case referred to in

paragraph (c), clear and comprehensive information

that the rights deriving from this Part do not apply

shall be made easily available to consumers by

auctioneers as defined in the Auctioneers Act.".

Article 73 of the principal Act shall be substituted by the

following

73. (1) Sellers shall deliver goods to the

requirements for

consumer that conform with the sales contract, which

goods shall, in particular, where applicable

(a) be of the description, type, quantity

and quality, and possess the functionality,

compatibility, interoperability and other features,

as required by the sales contract;

(b) be fit for any particular purpose for

which the consumer requires them and which the

consumer made known to the seller at the latest at

the time of the conclusion of the sales contract,

and in respect of which the seller has given

acceptance;

(c) be delivered with all accessories and

instructions, including on installation, as

stipulated by the sales contract; and

(d) be supplied with updates as stipulated

by the sales contract.

(2) In addition to complying with any subjective

requirement for conformity with sub-article (1) the

goods shall also

(a) be fit for the purposes for which goods

of the same type would normally be used, taking

into account, where applicable, any law, technical

standards or, in the absence of such technical

standards, applicable sector-specific industry

codes of conduct;

(b) where applicable, be of the quality

and correspond to the description of a sample or

model that the seller made available to the

consumer before the conclusion of the contract;

(c) where applicable, be delivered along

with such accessories, including packaging,

installation instructions or other instructions, as

the consumer may reasonably expect to receive;

and

(d) be of the quantity and possess the

qualities and other features, including in relation

to durability, functionality, compatibility and

security normal for goods of the same type and

which the consumer may reasonably expect given

the nature of the goods and taking into account

any public statement made by or on behalf of the

seller, or other persons in previous links of the

chain of transactions, including the producer,

particularly in advertising or on labelling.

(3) The seller shall not be bound by public

statements, as referred to in sub-article (2)(d) if the

seller shows that

(a) the seller was not, and could not

reasonably have been, aware of the public

statement in question;

(b) by the time of conclusion of the

contract, the public statement had been corrected

in the same way as, or in a way comparable to

how, it had been made; or

(c) the decision to buy the goods could

not have been influenced by the public statement.

(4) In the case of goods with digital elements, the

seller shall ensure that the consumer is informed of and

supplied with updates, including security updates, that

are necessary to keep those goods in conformity, for the

period of time

(a) that the consumer may reasonably

expect given the type and purpose of the goods

and the digital elements, and taking into account

the circumstances and nature of the contract,

where the sales contract provides for a single act

of supply of the digital content or digital service;

or

(b) indicated

in

the

proviso

of

article 78(1) where the sales contract provides for

a continuous supply of the digital content or

digital service over a period of time.

(5) Where the consumer fails to install within a

reasonable time updates supplied in accordance with

sub-article (4), the seller shall not be liable for any lack

of conformity resulting solely from the lack of the

relevant update, provided that

(a) the seller informed the consumer

about the availability of the update and the

consequences of the failure of the consumer to

install it; and

(b) the failure of the consumer to install

or the incorrect installation by the consumer of

the update was not due to shortcomings in the

installation instructions provided to the consumer.

(6) There shall be no lack of conformity within the

meaning of sub-article (2) or (4) if, at the time of the

conclusion of the sales contract the consumer was

specifically informed that a particular characteristic of

the goods was deviating from the objective

requirements for conformity laid down in sub-article

(2) or (4) and the consumer expressly and separately

accepted that deviation when concluding the sales

contract.

(7) Any lack of conformity resulting from the

Incorrect installation

incorrect installation of the goods shall be regarded as

lack of conformity of the goods if

(a) the installation forms part of the sales

contract and was carried out by the seller or under

the seller's responsibility; or

(b) the installation, intended to be carried

out by the consumer, was done by the consumer

and the incorrect installation was due to

shortcomings in the installation instructions

provided by the seller or, in the case of goods with

digital elements, provided by the seller or by the

supplier of the digital content or digital service.

(8) Nothing in this article shall prejudice the

application of article 73A.".

Immediately after article 73 of the principal Act there shall be Addition of new

article 73A to

added the following new article 73A

the principal

Act.

73A. Where a restriction resulting from a violation

of any right of a third party, in particular intellectual

property rights, prevents, or limits the use of the goods

in accordance with sub-articles (1) to (6) of article 73,

the consumer is entitled to the remedies established for

lack of conformity in article 74(1), (2), (3), (4), in

article 75(1) and in article 76(2), unless the law

provides for the nullity or rescission of the sales

contract in such cases.".

Article 74 of the principal Act shall be substituted by the Substitution of

article 74 of the

principal Act.

74. (1) In the event of a lack of conformity, the

consumer shall be entitled to have the goods brought

into conformity or to receive a proportionate reduction

in the price, or to terminate the contract, under the

conditions set out in this article and in article 75.

(2) The seller may refuse to bring the goods into

conformity if repair and replacement are impossible or

would impose costs on the seller that would be

disproportionate, taking into account all circumstances

including those mentioned in paragraphs (a) and (b) of

sub-article (1) of article 75.

(3) The consumer shall be entitled to either a

proportionate reduction of the price in accordance with

article 76(1) or the termination of the sales contract in

accordance with article 78A in any of the following

cases

(a) the seller has not completed repair or

replacement or, where applicable, has not

completed repair or replacement in accordance

with article 75(3) and (4), or the seller has refused

to bring the goods into conformity in accordance

with sub-article (4);

(b) a lack of conformity appears despite

the seller having attempted to bring the goods into

conformity;

(c) the lack of conformity is of such a

serious nature as to justify an immediate price

reduction or termination of the sales contract; or

(d) the seller has declared, or it is clear

from the circumstances, that the seller will not

bring the goods into conformity within a

reasonable time, or without significant

inconvenience for the consumer.

(4) The consumer shall have the right to withhold

payment of any outstanding part of the price or a part

thereof until the seller has fulfilled the seller's

obligations under this Part.".

Article 75 of the principal Act shall be substituted by the

75. (1) In order to have the goods brought into

conformity, the consumer may choose between repair

and replacement, unless the remedy chosen would be

impossible or, compared to the other remedy, would

impose costs on the seller that would be

disproportionate, taking into account all circumstances,

including

(a) the value the goods would have if

there were no lack of conformity;

(b) the significance of the lack of

conformity; and

(c) whether the alternative remedy could

be provided without significant inconvenience to

the consumer.

(2) Repairs or replacements shall be carried out

(a) free of charge;

(b) within a reasonable period of time

from the moment the seller has been informed by

the consumer about the lack of conformity; and

(c) without any significant inconvenience

to the consumer, taking into account the nature of

the goods and the purpose for which the consumer

required the goods.

(3) Where the lack of conformity is to be remedied

by repair or replacement of the goods, the consumer

shall make the goods available to the seller. The seller

shall take back the replaced goods at the seller ’s

expense.

(4) Where a repair requires the removal of goods

that had been installed in a manner consistent with their

nature and purpose before the lack of conformity

became apparent, or where such goods are to be

replaced, the obligation to repair or replace the goods

shall include the removal of the non-conforming goods,

and the installation of replacement goods or repaired

goods, or bearing the costs of that removal and

installation.

(5) The consumer shall not be liable to pay for

normal use made of the replaced goods during the

period prior to their replacement.".

Article 76 of the principal Act shall be substituted by the

76. (1) The reduction of price shall be

proportionate to the decrease in the value of the goods

which were received by the consumer compared to the

value the goods would have if they were in conformity.

(2) The consumer shall not be entitled to terminate

the contract if the lack of conformity is only minor. The

burden of proof with regard to whether the lack of

conformity is minor shall be on the seller.".

Article 77 of the principal Act shall be substituted by the

77. Where the seller is liable to the consumer

because of a lack of conformity resulting from an act or

omission, including omitting to provide updates to

goods with digital elements in accordance with article

73(4), by a person in previous links of the chain of

transactions, the final seller shall be entitled to pursue

remedies against the person or persons liable in the

chain of transactions.".

Article 78 of the principal Act shall be substituted by the

78. (1) The seller shall be liable to the consumer

for any lack of conformity which exists at the time

when the goods were delivered and which becomes

apparent within two years of that time. Without

prejudice to article 73(4), this sub-article shall also

apply to goods with digital elements

Provided that in the case of goods with digital

elements, where the sales contract provides for a

continuous supply of the digital content or digital

service over a period of time, the seller shall also be

liable for any lack of conformity of the digital content

or digital service that occurs or becomes apparent

within two years of the time when the goods with

digital elements were delivered. Where the contract

provides for a continuous supply for more than two

years, the seller shall be liable for any lack of

conformity of the digital content or digital service that

occurs or becomes apparent within the period of time

during which the digital content or digital service is to

be supplied under the sales contract.

(2) The two-year period mentioned in sub-article

(1) shall be suspended for the duration of negotiations

carried on between the seller and the consumer with a

view to an amicable settlement.".

Immediately after article 78 of the principal Act there shall be Addition of new

article 78A to

added the following new article 78A

the principal

Act.

78A. (1) The consumer shall exercise the right to

terminate the sales contract by means of a statement to

the seller expressing the decision to terminate the sales

contract

Provided that where the lack of conformity

relates to only some of the goods delivered under the

sales contract and there is a ground for termination of

the sales contract pursuant to article 74, the consumer

may terminate the sales contract only in relation to

those goods, and in relation to any other goods which

t h e c o n s u m e r a c q u i r e d t og e t h e r w i t h t h e n on -

conforming goods if the consumer cannot reasonably be

expected to accept to keep only the conforming goods.

(2) Where the consumer terminates a sales

contract as a whole or, in accordance with the proviso

in the preceding sub-article, in relation to some of the

goods delivered under the sales contract

(a) the consumer shall return to the seller,

at the seller’s expense, the goods; and

(b) the seller shall reimburse to the

consumer the price paid for the goods upon

receipt of the goods or of evidence provided by

the consumer of having sent back the goods.".

Article 79 of the principal Act shall be substituted by the

79. In order to benefit from the remedies available

under this Part, a consumer shall notify the seller on a

durable medium of any lack of conformity within a

period of at least two months from the date on which the

consumer detected such lack of conformity.".

Article 80 of the principal Act shall be substituted by the

80. (1) Any lack of conformity which becomes

apparent within one year of the time when the goods

were delivered shall be presumed to have existed at the

time when the goods were delivered, unless proved

otherwise or unless this presumption is incompatible

with the nature of the goods or with the nature of the

lack of conformity. This sub-article shall also apply to

goods with digital elements.

(2) In the case of goods with digital elements

where the contract of sale provides for the continuous

supply of the digital content or digital service over a

period of time, the burden of proof with regard to

whether the digital content or digital service was in

conformity within the period of time referred to in the

proviso of article 78(1) shall be on the seller for a lack

of conformity which becomes apparent within the

period of time referred to in that article.".

Article 81 of the principal Act shall be substituted by the

81. Unless otherwise provided for in this Part, any

contractual agreement which, to the detriment of the

consumer, excludes the application of this Part,

derogates from them, or varies their effect, before the

lack of conformity of the goods is brought to the

seller’s attention by the consumer, shall not be binding

on the consumer.".

Article 83 of the principal Act shall be substituted by the Substitution of

article 83 of the

principal Act.

83. (1) A commercial guarantee statement shall

be provided to the consumer on a durable medium at the

latest at the time of the delivery of the goods. The

commercial guarantee statement shall be expressed in

plain, intelligible language and it shall include the

following

(a) be formulated in at least one of the

official languages of Malta;

(b) specify the name and address of the

guarantor, and clearly state the permanent address

of the place of trade or business and the name of

the person who is supplying the consumer with

the commercial guarantee;

(c) clearly state the contents of the

guarantee including its territorial scope if this is

limited as well as the duration of the guarantee

from the date of purchase and different periods

may be stipulated for different components of any

goods;

(d) clearly specify the procedure to be

followed by the consumer to obtain the

implementation of the commercial guarantee. If a

person who, in supplying a commercial

guarantee, fails to provide the consumer with the

information required under this paragraph, he

shall then be responsible for the execution of the

commercial guarantee at his expense;

(e) clearly state whether the commercial

guarantee may be transferred to others. Unless

otherwise stipulated the commercial guarantee

may also be availed of by any subsequent owners

of the goods to which the commercial guarantee

refers

Provided that unless the commercial

guarantee specifically states otherwise, it shall be

assumed that in the case of goods, the commercial

guarantee covers any defects that may result

during the period of guarantee;

(f) the designation of the goods to which

the commercial guarantee applies;

(g) a clear statement that the consumer is

entitled by law to remedies from the seller free of

charge in the event of a lack of conformity of the

goods and that those remedies are not affected by

the commercial guarantee; and

(h) the terms of the commercial

guarantee.

(2) Non-compliance with sub-article (1) shall not

affect the binding nature of the commercial guarantee

for the guarantor.".

Article 84 of the principal Act shall be substituted by the

84. Where a seller or any other person gives a

commercial guarantee to a consumer, irrespective of

when or how it is given, then that seller or other person

shall be liable to the consumer for the observance of the

terms and execution of the commercial guarantee as if

he were the guarantor.".

Article 90 of the principal Act shall be substituted by the

90. Any commercial guarantee shall be binding on

the guarantor under the conditions laid down in the

commercial guarantee statement and associated

advertising available at the time, or before the

conclusion, of the contract. Under the conditions laid

down in this article and without prejudice to any other

applicable law, where a producer offers to the consumer

a commercial guarantee of durability for certain goods

for a certain period of time, the producer shall be liable

directly to the consumer, during the entire period of the

commercial guarantee of durability for repair or

replacement of the goods in accordance with article

75(2) to (5). The producer may offer to the consumer

m or e favourable condi tions i n the comm ercial

guarantee of durability statement

Provided that if the conditions laid out in

the commercial guarantee statement are less

advantageous to the consumer than those laid down in

the associated advertising, the commercial guarantee

shall be binding under the conditions laid down in the

advertising relating to the commercial guarantee,

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.".

Article 92 of the principal Act shall be substituted by the Substitution of

article 92 of the

principal Act.

92. This Part shall not prevent the seller from

offering to the consumer contractual arrangements that

go beyond the protection provided for in this Part.".

Article 93 of the principal Act shall be substituted by the Substitution of

article 93 of the

principal Act.

93. If the goods being the object of a sales contract

" Replacement parts,

repair service where

to a consumer are of a nature that may require

maintenance, or possible replacement of parts, then

replacement parts and appropriate repair service must

be made available for a reasonable time from the date

of the delivery of the goods by the seller to the

consumer.".

Article 93A of the principal Act shall be deleted.

19.

L-artikolu 93B tal-Att prinċipali għandu jiġi sostitwit b'dan li

Article 93B of the principal Act shall be substituted by the

93B. The purpose of this Part is to implement the

provisions of Directive (EU) 2019/771 of the European

Parliament and of the Council of 20 May 2019 on

certain aspects concerning contracts for the sale of

goods, amending Regulation (EU) 2017/2394 and

Directive 2009/22/EC, and repealing Directive 1999/

44/EC (Text with EEA relevance) and the provisions of

this Part shall be applied and interpreted accordingly.".

Immediately after article 93B of the principal Act there shall

be added the following new article 93C

93C. Contracts concluded before the 1 January

2022 shall be regulated by the provisions of this Part as

in force prior to the entry into force of the Consumer

Affairs (Amendment) Act, 2022.".

Passed by the House of Representatives at Sitting No. 533 of the

12th January, 2022.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.71