The Belgian legislature approved the new Commercial Practices Act and inserts the Act as Book VI in the Code of Economic Law. The Act was signed by the King on 21 December 2013 and was published on 30 December 2013 in the Moniteur belge. The new Act will enter into force at a later date, to be decided by the Government.
The new Commercial Practices Act, i.e. Book VI in the Code of Economic Law, differs slightly from the current Act of 6 April 2010. The initial purpose of the Government was to insert the Act of 2010 in the Code of Economic Law and amend only the formal aspects. After the recent decisions of the Court of Justice of the EU, however, the Government was forced to amend several provisions to make them compliant with the Commercial Practices Directive N° 29/2005 of the EU.
The main changes to the Act of 6 April 2010 concern the justification of certain prohibitions. The Court of Justice ruled on several occasions that European Directive N° 29/2005 exhaustively regulates the commercial practices for the whole [of the] EU and that, as a result, Belgian law may not prohibit practices that are allowed in the Directive. The Court of Justice decided this in disputes about combined offers, sales periods and loss sales.
To address] the criticism of the Court of Justice, the new Act now provides that certain practices are still prohibited, not to protect consumers but to provide fair competition between [companies]. With regard to the sales periods, for instance, article 25 of Book VI clearly states that the restrictive rules regarding sales merely aim at protecting companies. It is not allowed to operate sales or use the word “sales” except in the period from 3 to 31 January and from 1 to 31 July. Moreover, in the period of one month preceding the sales periods, any announcement of price reductions is prohibited for clothing, shoes and leatherware.
The question arises whether it is sufficient to provide in the Act that the new rules only aim at protecting [companies] and not consumers, in order to prevent the Court of Justice of the EU ruling once more that the strict rules regarding the sales periods do not comply with the Market Practices Directive. The same applies for loss sales (article 116 of the new Book VI). Also, with regard to the announcements of price reductions in general and with regard to liquidation sales, it is questionable whether these restrictive rules comply with the Directive. More case law is to be expected in these areas.
Finally, the new Book VI implements the European rules regarding distance selling and door-to-door sales: it will no longer be a requirement to inform the consumer about his right to withdraw from the contract within 14 days via a clause printed in bold in a frame on the first page of the delivery documents. The information will have to be provided in a document that accompanies the delivery and that can be completed if the consumer exercises his right to withdraw from the contract.
