On 24th of May 2019, a new act modifying the Belgian Code of Economic Law was published in the Official Journal. This Act will undoubtedly have an important impact on the B2B relations.
As a matter of fact, the rules concerning the abuse of economic dependence, the abusive contract clauses and the unfair market practices between enterprises have been modified as a consequence.
The abuse of economic dependence
In the field of competition law (Book IV of the Code of Economic Law), in addition to the existing rules, the legislator decided to prohibit the abuse of the economic dependence of another company.
The legislator defines the position of economic dependence as “the position of subjection of a company to one or more other companies characterised by the absence of a reasonably equivalent alternative available within a reasonable time limit, on reasonable terms and at reasonable costs, enabling it or each of them to impose services or conditions which could not be obtained under normal market conditions” (free translation from the French version).
The legislator has explicitly foreseen 5 situations under which there can be an abuse of the position of economic dependence of another company:
Refusal of a sale, purchase or other transactional conditions;
Direct or indirect imposition of purchase or sale prices or other unfair trading conditions;
Limitation of production, markets or technical development to the detriment of consumers;
Application of unequal conditions to equivalent services to economic partners, thereby placing them at a competitive disadvantage;
Making the conclusion of contracts subject to the acceptance by the economic partners of additional services which, by their nature or according to commercial practice, are not related to the subject matter of those contracts.
These new rules of competition law will enter into force on 1st of June 2020.
The abusive B2B contract clauses
In parallel with the unfair and abusive clauses already existing in B2C relations, the legislator has decided to extend the principle to B2B relations.
Thus, according to the new legislation, any clause in a contract between companies is prohibited when, alone or in combination with one or more clauses, it creates a clear imbalance between the rights and obligations of the parties of interest.
In addition, the legislator adds a list of 4 clauses that are always considered as abusive and therefore illegal (the black list).
The new act also foresees 8 clauses that are presumed to be abusive in the B2B relations (the grey list).
Those new rules on the abusive clauses will enter into force on 1st of December 2020, for the contracts concluded, renewed or modified from that day on.
The unfair market practices
The legislator also decided to set new rules linked to the prohibition of unfair market practices in B2B relations (in addition to the existing rules of articles VI. 104 to VI. 109 of the Code of Economic Law).
The new rules are mainly prohibiting misleading and aggressive practices between enterprises and are inspired by the rules already existing in the B2C relations.
These rules on the unfair market practices have already entered into force on 1st of September 2019.
If you require assistance or advice on any of the above mentioned to these changes or other any other queries, at Vanbelle Law we offer expert knowledge in the field, backed with years of experience. Get in touch today!
Source: A. Mottet, J. Willems and W. Van Breugel, “Attention! Imminent and fundamental changes in the Belgian B2B landscape!”, 05/09/2019, www.lexgo.be