On 27 August 2015, the Belgian government submitted a bill to the Chamber of Representatives that amends in various respects the Code of Economic Law of 28 February 2013 (Wetboek van Economisch Recht van 28 februari 2013/Code de droit économique du 28 février 2013 – the “Code of Economic Law”) (the “Bill”).
The Bill’s main novelties are discussed below. They relate to a wide range of fields of law, including (i) consumer law and market practices; (ii) telecommunications; (iii) intellectual property law (plant variety rights); and (iv) the rules on electronic signatures.
Consumer Law and Market Practices
The Bill introduces four main changes in the field of consumer law and market practices (See VBB on Business Law, Volume 2015, No. 4, p. 10 and No. 6, p. 17, available at www.vbb.com).
First, the Bill repeals the rules on the announcement of price reductions set out in Articles VI.18 to VI.21 of the Code of Economic Law, as well as the equivalent provisions applicable to practitioners of liberal professions (vrije beroepen/professions libérales) set out in Articles XIV.10 to XIV.13 of the same Code. These rules in essence provide that:
- products can be regarded as discounted only if the price is lower than the reference price, which is defined as the lowest price set by the company for such products during the month prior to the announcement of the price reduction at that sales outlet or according to that sales technique;
- a price reduction must not last longer than a month, nor less than a day; and
- for specific (categories of) products or services, a Royal Decree may provide either for special rules or a prohibition on the announcement of price reductions.
By repealing the above rules, the Bill gives effect to a ruling of the Court of Justice of the European Union (the “ECJ”) of 10 July 2014. In that ruling, the ECJ had found the equivalent provisions under the now defunct Law of 6 April 2010 on market practices and consumer protection (Wet van 6 april 2010 betreffende marktpraktijken en consumentenbescherming/Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur – the "Law of 6 April 2010”) incompatible with Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (the “Directive”). According to the ECJ, these provisions went beyond the Directive’s requirements (ECJ, 10 July 2014, case C-421/12, European Commission v. Kingdom of Belgium). The ECJ considered this to be unlawful given that the Directive envisages a complete harmonisation. Moreover, the ECJ held that Belgium unlawfully excluded practitioners of liberal professions from the scope of the Law of 6 April 2010 (See VBB on Business Law, Volume 2014, No. 7, p. 3-4, available at www.vbb.com).
The explanatory memorandum to the Bill emphasises that the abolition of the above provisions on the announcement of price reductions does not imply that companies and practitioners of liberal professions will be at liberty to do what they want. They will still have to observe the rules on unfair commercial practices vis-à-vis consumers and, in particular, Article VI.97, 4° of the Code of Economic Law. This provision prohibits any misleading information as to the (i) price; (ii) manner in which the price is calculated; or (iii) existence of a specific price advantage. On 25 June 2015, the Consumption Council (Raad voor het Verbruik/Conseil de la Consommation) published a draft set of guidelines on the announcement of price reductions to consumers following the ECJ’s judgment of 10 July 2014. The opinion of the Consumption Council is available at: http://economie.fgov.be/nl/binaries/484_tcm325-270345.pdf.
Second, the Bill repeals Articles VI.23, §4 and VI.26, §§2-3 of the Code of Economic Law, which contain rules similar to those described above for (i) liquidation sales (uitverkopen/ventes en liquidation); and (ii) clearance sales (opruimingen of solden/ventes en solde).
Third, the Bill repeals, in relation to contracts negotiated away from business premises (buiten verkoopruimten gesloten overeenkomsten/contrats hors établissement), the prohibition on sellers/service providers to require a deposit or payment from the consumer prior to the expiry of a period of seven working days following the date of signing of the contract (See, current Article VI.67, §2, last indent and, with respect to practitioners of liberal professions, Article XIV.41, §2, last indent of the Code of Economic Law). The explanatory memorandum to the Bill notes that this prohibition is unjustified and disproportionate. Moreover, in combination with the consumer’s right of withdrawal during 14 calendar days, it creates an unnecessarily complex situation and puts a heavy administrative burden on the seller/service provider. The explanatory memorandum continues that (i) the consumer already enjoys an increased level of protection, in particular through the seller’s/service provider’s increased information duty and the 14-day right of withdrawal; and (ii) in any case, the number of complaints is limited.
Fourth, the Bill introduces a few changes to Book XVI of the Code of Economic Law on the extrajudicial resolution of consumer disputes, mainly in view of implementing Directive 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes (“Directive 2013/11/EU”) in Belgian law. Amongst other things, provisions are introduced which:
- entitle the parties to an alternative dispute resolution (“ADR”) procedure to withdraw from that procedure at all times if they are dissatisfied with its performance or operation;
- clarify under what circumstances the solution imposed by the ADR entity will be binding on the parties (i.e., on the consumer and/or trader) and ensure that the solution imposed does not deprive the consumer of the protection afforded to him by mandatory provisions of (i) Belgian law; and (ii) in a situation involving a conflict of laws, the law of the EU Member State in which he is habitually resident; and
- require the ADR entity to ensure compliance with the Law of 8 December 1992 on the protection of privacy with regard to the processing of personal data (Wet van 8 december 1992 tot bescherming van de persoonlijke levenssfeer ten opzichte van de verwerking van persoonsgegevens/Loi du 8 décembre 1992 relative à la protection de la vie privée à l’égard des traitements de données à caractère personnel).
Telecommunications
The Bill amends Articles VI.110 and XIV.77 of the Code of Economic Law to provide the same level of protection against unsolicited communications to all consumers, regardless of the means of communication used and irrespective of whether the recipient has the status of “subscriber” under the Telecommunications Law of 10 July 2012 (Wet van 10 juli 2012 houdende diverse bepalingen inzake elektronische communicatie/Loi du 10 juillet 2012 portant des dispositions diverses en matière de communications électroniques). As a result of the change, the right to object to unsolicited communications will no longer be limited to “subscribers” and not exclude consumers who receive unsolicited communications through means other than telecommunications services (e.g., by letter).
In addition, the Bill rectifies a mistake contained in Article XV.14 of the Code of Economic Law. Article XV.14 currently provides that the judge can order telecommunications operators to interrupt their services temporarily (if possible) vis-a-vis anyone who uses these services to infringe Article XV.83(7) of the same Code. However, Article XVI.83(7) relates to bills of exchange. Article XV.14 should refer to Article XVI.83(8) instead, which penalises infringements to the rules governing distance contracts.
Intellectual Property Law – Plant Variety Rights
The Bill formally abolishes the Law of 20 May 1975 on the protection of plant variety rights (Wet van 20 mei 1975 tot bescherming van kweekproducten/Loi du 20 mai 1975 sur la protection des obtentions végétales – the “Law of 20 May 1975”). The Law of 20 May 1975 has been replaced by the codified rules on intellectual property rights in the Code of Economic Law. However, the law formally abolishing the Law of 20 May 1975 (Wet van 10 januari 2011 ter bescherming van kweekproducten/Loi du 10 janvier 2011 sur la protection des obtentions végétales) has never entered into force. The Bill now remedies this by formally abolishing the Law of 20 May 1975.
Law on Electronic Signatures
The Bill amends Article XII.15, §2, second indent of the Code of Economic Law so as to refer again to Article 4, §4 of the Law of 9 July 2001 establishing certain rules in relation to the legal framework on electronic signatures and certification services (Wet van 9 juli 2001 houdende vaststelling van bepaalde regels in verband met het juridisch kader voor elektronische handtekeningen en certificatiediensten/Loi du 9 juillet 2001 fixant certaines règles relatives au cadre juridique pour les signatures électroniques et les services de certification), rather than to a (currently non-existent) article in a yet to be inserted Title 2 of Book XII of the Code of Economic Law.
This change will most likely be undone once Belgian law has been made compliant with Regulation 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (See VBB on Business Law, Volume 2014, No. 11, p. 3, available at www.vbb.com). In this regard, the Bill notes that the required legislative work will be carried out in the upcoming months and announces the introduction of a new Title 2 in Book XII of the Code of Economic Law to this effect.
