Unfair B2B market practices
The prohibition of unfair market practices has been included in Book VI of the Belgian Code of Economic Law and is applicable as from 1 September 2019. The prohibition covers both ‘misleading’ and ‘aggressive’ market practices in B2B relationships.
Misleading market practices
(Art. VI. 105 CEL)
A ‘misleading’ market practice is a market practice which involves false information and is therefore untruthful, or, even if the information is factually correct, deceives or is likely to deceive a professional counterparty in any way, including overall presentation, with regard to certain elements, and in either case causes or is likely to cause it to take a transactional decision that it would not have taken otherwise.
This includes (possible) deception with regard to:
- the existence or nature of the product;
- the main characteristics of the product, such as availability, benefits, risks, execution, composition, accessories, after-sales service and complaint handling, process and date of manufacture or provision, delivery, suitability for use, possibilities for use, quantity, specification, geographical or commercial origin, results to be expected from use, or the results and essential characteristics of tests or checks carried out on the product;
- the scope of the company's obligations, the motives for market practice and the nature of the sales process, any statement or symbol which leads one to believe that the company or the product receives sponsorship or direct or indirect support;
- the price or the way in which the price is calculated, or the existence of a specific price advantage;
- the need for a service, part, replacement or repair;
- the quality, characteristics and rights of the company or its intermediary, such as its identity, assets, qualifications, status, recognition, affiliation, connections, industrial, commercial or intellectual property rights or its awards and distinctions;
- the rights of the other undertaking, or the risks it may run;
- the marketing of a product, including through comparative advertising, in such a way as to create confusion with other products, trademarks, trade names and other distinguishing marks of a competitor;
- non-fulfilment by the company of obligations laid down in a sectoral code of conduct to which it has committed itself, insofar as this is not a declaration of intent but an obligation that is verifiable;
- the communication of degrading data about another company, its goods, services or activity.
Is also misleading: the omission of essential information which the other company needs, depending on the context, to take an informed transactional decision and which causes or may cause it to take a decision that it would not otherwise have taken.
Aggressive market practices
(Art. 109/1 CEL)
An ‘aggressive’ market practice is a market practice which, in its factual context, taking account of all its characteristics and circumstances, by means of harassment, coercion, including the use of physical force, or inappropriate influence, significantly limits or may significantly limit a company's freedom of choice or conduct with regard to a product and thereby causes or may cause it to take a transactional decision that it would not have taken otherwise.
The notion of ‘inappropriate influence’ is thereby interpreted as the exploitation by one company of its dominant position in relation to the other company in order to exercise pressure, even without using or threatening to use physical force, in a manner which significantly limits its ability to take an informed decision.
Stéphanie De SmedtCounsel Attorney at Law
Stéphanie De Smedt, attorney-at-law, is a member of the Litigation & Risk Management practice group in our Brussels office. She is head for Belgium of the IP/IT Team, the Data Protection Team and the Life Sciences Team.T: +32 2 773 23 77 E: email@example.com
Wannes BuelensAssociate Attorney at Law
Wannes Buelens is a member of the Litigation & Risk Management practice group in our Brussels office. He specializes in health law, liability law and insurance law. He is also a member of the firmwide Healthcare & Life Sciences Team.T: +32 2 773 23 72 M: +32 4 94 43 31 04 E: firstname.lastname@example.org
Wim Vande VeldePartner Attorney at Law
Wim Vande Velde is a local partner in the Corporate and M&A Practice Group in Belgium. He has extensive experience in national and international M&A transactions for both listed and non-listed companies, as well as in corporate restructuring.T: +32 2 743 43 96 E: email@example.com
Charlotte JacquesAssociate Attorney at law
Charlotte Jacques, attorney at law, is a member of the Litigation & Risk Management practice group in our Brussels office. She specialises in Commercial Law IP, IT and Data Protection & Privacy. Charlotte is also a member of the Data Protection & Privacy Team and Corporate Investigations, Compliance & Defence Team.T: +32 2 700 10 26 E: firstname.lastname@example.org