The Advocate General of the Court of Justice has ruled in the case brought by the Commission against Belgium because of the incomplete and incorrect Belgian transposition of the Unfair Commercial Practices Directive n° 2005/29 (hereafter “UCP”) on November 26, 2013 into national legislation.
According to the European Commission Belgium did an incomplete transposition of the UCP.
On February 2, 2009 Belgium was put on notice by the Commission because of certain shortcomings in the transposition of the UCP into national law. In response, Belgium enacted the LMPCP of 6 April 2010. The Commission still was not satisfied and advised to Belgium on March 15, 2011 that the LMPCP did not offer a solution to the shortcomings of Belgium who were enumerated in a notice letter of February 2, 2009.
Finally the Commission started a case against Belgium before the European Court of Justice (C-421/12).
Please find below a short overview of the advice of the Advocate General of the Court of Justice.
1. Liberal professions
Belgium had refused to include the liberal professions, dentists and physiotherapists in the scope of the LMPCP. The Belgian Constitutional Court already had ruled that the exclusion of the aforementioned professionals from the notion of ‘traders’ in the scope of the LMPCP was unconstitutional, but the LMPCP has not yet changed.
The Advocate General now explicitly states in his advice of November 26, 2013 that these groups should not be excluded from the scope of the LMPCP and that an amendment to the law is appropriate. Belgium's argument that these groups are included in the LMPCP of 2 August 2002 concerning misleading and comparative advertising offers, according to the Attorney General, no solution because the mentioned law of 2 August 2002 on misleading and comparative advertising and the LMPCP have a different scope.
The liberal professions will have to be included explicitly in the scope of the LMPCP. The draft of 24 September 2013 of a new law that introduces Book IV on market practices and consumer protection in the Code of Economic Law would have resolved this issues by making the LMPCP applicable to liberal professions.
2. Discounting
Belgium also has a number of articles in the LMPCP, namely 20, 21 and 29 that are stricter than provided by the UCP. Under these rules, products can only be discounted if the new asking price is less than the reference price, which is the lowest price that has requested (in sales), and being the lowest price it has used in the course of the company for those products during the month the month preceding the first day of the new price is announced (regular price reductions).
Since the UCP’s objective is to fully harmonize the legislation in the Member States on unfair commercial practices and the UCP does not contains such prohibition and rules regarding price reductions, the more stringent provisions of the LMPCP cannot be maintained. This will have an impact on the price announcements during the sales. It will be easier, probably less burdensome for the merchant, but much less transparent to the consumer. The latter will receive less information with respect to the price reductions. It remains to be seen how Belgium will respond to this advice of the Advocate-General.
3. Street trading
The third shortcoming of Belgium concerns the rules on the street trading. Belgium prohibits that certain products are sold through street trading and also prohibits certain forms of street trading.
The UCP does not contain such prohibitions and therefore Belgium should not be stricter than the UCP because the UCP aims to provide a full harmonization.
The UCP however allows member states to have stricter legislation if this appears to be indispensable for the consumers of that member state. This is only possible under certain conditions, for example if the Commission is immediately notified of such necessity.
Since Belgium did not follow these rules, the Advocate-General concludes that Belgium’s stricter legislation is not allowed.
4. Conclusion
The European Court of Justices will very likely follow the opinion of its Advocate-General and Belgium will most likely have to proceed with some modifications to its existing legislation.
Belgium already made a start with the draft of a new law introducing Book IV on the Market Practices and Consumer Protection in the Code of Economic Law, which includes the liberal professions in the scope of the LMPCP and modifies some provisions with respect to price reductions.
