Frequently Asked Questions

The new rules apply to all agreements between “companies”. For the purpose of these new rules, “companies” are defined as “any natural or legal person pursuing an economic aim on a durable basis”.

They do however not apply to contracts regarding (i) financial services, and (ii) public procurement and contracts deriving from a public procurement process. Financial institutions and governments as such are however not excluded.

In many cases these rules will indeed still apply, regardless of the applicable law chosen by the parties.

This may be the case in proceedings brought before foreign European courts if the contract is or has been executed in Belgium.

This will however be the case (i) if a dispute based on the contract is brought before the Belgian courts (they have to apply Belgian ‘overriding mandatory laws’) or (ii) in proceedings brought before foreign European courts if all elements relevant to the situation at the time of the choice are located in Belgium.

They will only apply to contracts that are signed, renewed or amended as from 1 December 2020.

However, this also means that ongoing agreements that are only slightly amended after 1 December 2020 (e.g. amendment of pricing clause or territory of the agreement) will become fully subject to these new rules as from their amendment. Also, a prolongation of an agreement constitutes an amendment of an agreement.

How will it be determined if a clause creates a “significant imbalance” between the rights and obligations of the parties?

This will be determined taking into account all relevant circumstances, and in particular:

• The circumstances surrounding the conclusion of the contract;
• The general economy of the contract;
• The transparency of the relevant clause(s) (are they “clear and comprehensible”?);
• The commercial practices in the relevant sector/industry;
• The nature of the products and services; and
• All other clauses of the contract or of other related contracts.

They are indeed unlawful in any event, without giving the parties the opportunity to refute the unlawfulness, i.e. prove that the clause does not create a (significant) imbalance between their respective rights and obligations.

For clauses on the ‘grey list’, the presumption of unfairness can indeed be refuted. In practice, this should be done by showing that both parties truly wanted to include the relevant clause in the overall balance of the agreement and have duly considered the impact of such clause, i.e. prove that the clause does not create a (significant) imbalance between their respective rights and obligations.

To actually prove this, parties should consider:

• Documenting the pre-contractual phase and their negotiations in more detail, e.g. mark-ups of draft versions of the agreement;
• Writing (more) detailed preambles that reflect their overall understanding, including on the fairness of the (potential) ‘grey list’ clause; and
• Including an additional motivation in the text of the (potential) ‘grey list’ clause or in an additional ‘boilerplate’ provision.

If you would ever have a dispute with your contractual counterparty, they may invoke the nullity of an unlawful clause. The clause will likely be deemed unenforceable, except if such claim constitutes an ‘abuse of right’.

In principle, the other clauses of the contract and the contract itself will remain in force if it can continue to exist in the absence of the unfair clause. If not, also other clauses, or the contract as a whole, can be declared null and void, which is however rather exceptional. A proper severability clause can help avoiding this type of issues.

Furthermore, any interested party (including a professional body, an association, or the Ministers of Economic Affairs) can also initiate cease-and-desist proceedings (e.g. against the further use of general terms and conditions containing unlawful clauses) or bring a claim for damages suffered as a result of the application of the unlawful clause. Collective claims (‘class actions’) are also possible.

Finally, a violation in bad faith of the provisions regarding unlawful clauses may result in criminal fines up to EUR 200,000.

The parliamentary works state that the jurisprudence of the EU Court of Justice regarding the interpretation of the prohibited clauses in B2C contracts should not be applied mutatis mutandis to B2B contracts.

It is however likely that the that courts will seek inspiration in the list of unlawful clauses in a B2C-context and in the existing national and international jurisprudence interpreting these clauses to interpret the similar clauses that exist for B2B contracts.

For now, the rules are what they are.

However, future amendments to the law are not excluded, e.g. in the framework of Book V ‘obligations’ of the new Belgian Civil Code. There is in fact a consensus amongst scholars that the law in its current form will lead to excessive legal uncertainty and interferes too much with the contractual freedom of (professional) parties to an agreement, which is one of the core principles underpinning Belgian contract law.