The present article, fourth in our series, focuses on these two new sets of rules. Click here to read the first article of our series, which focuses on the new warranty and conformity requirements for sales of goods (with or without digital elements), digital content, and digital services and here to read the second article, which focuses on the extended list of unfair (misleading and aggressive) market practices in a B2C context. Our third article focuses on the extension of the scope of the distance selling and off-premises sales rules to the supply of digital content and digital services. You can read the third article here.
Since 28 May 2022, traders need to take the following rules into account when announcing price reductions to consumers:
- Obligation to show a “reference price”, which is the price previously applied by the trader during a defined period preceding the price reduction.
- The “previously applied price ” is the lowest price applied by the trader for those same goods during a period of 30 days prior to the application of the price reduction.
- For goods that have not yet been offered for sale for a full period of 30 days, the “previously applied price” is the lowest price applied by the trader during a period of minimum 7 days prior to the application of the price reduction.
- When the trader operates multiple points of sale or uses multiple sales techniques, the reference price should be the lowest price applied during the period mentioned above in the point of sale or through the sales technique involved by the announcement of the price reduction (e.g., price applied in the trader’s brick-and-mortar shop vs. price applied in its webshop).
- When the price reduction is progressively increased for an uninterrupted period of up to 30 days, then the “previously applied price” is the price without price reduction, prior to the application of the first price reduction.
Exceptions to these new rules apply only to goods that expire quickly or which have a limited shelf life. Neither do these rules apply to general advertisement communications that do not announce a specifically measurable price reduction (e.g., "best/lowest price", "promo", "two for the price of one", etc.). Of course, such communications still need to respect the general rules on unfair (misleading) commercial practices.
Note that similar rules on the announcement of price reductions were included in the Belgian Code of Economic Law in the past. In 2015, they were, however, deleted from the Code of Economic Law as they were declared invalid by the EU Court of Justice (case C-421/12).
The aim of these rules has now been further clarified as being the protection of consumers from misleading announcements of price reductions where artificially increased prices are used as the reference price. However, the legislator also emphasized that these new rules have no impact on the freedom of traders to set and very their prices, both immediately before and after a price reduction. Also, the duration of a price reduction can still be freely determined (there is no minimum or maximum duration), as long as the reference period requirements set out above are respected.
Finally, also note that the legislator has acknowledged that there should be room for the use of digital means to display the required reference price information, provided that it should be possible for the consumer to immediately know the (reference) price without having to make any particular efforts to do so. Prices should always be indicated in writing, unambiguously, legibly, and clearly visible. Requiring consumers to scan a QR code, for example, before being able to see this information, would not be in line with these obligations.
Acceptance of (electronic) payment methods
As of 1 July 2022, every B2C trader operating in Belgium will be required to offer at least one electronic payment method so that “cashless” consumers can still pay for goods or services. The rationale behind this new obligation is primarily the fight against tax fraud but also the promotion of the widespread use of electronic payment solutions.
The Act of 17 March 2022 will introduce this new obligation into the Belgian Code of Economic Law. The new Article VI.7/4 CEL provides as follows "Without prejudice to Article VII.30, §3 [i.e., the legal provision prohibiting surcharges for the choice for a specific payment method], where a payment in euros is made with the simultaneous physical presence of the consumer and the trader, the trader shall provide the consumer with an electronic means of payment".
The notion of an “electronic means of payment” is meant to cover any means of payment "other than coins and banknotes in euro, provided by a payment services provider [as defined in the Code of Economic Law]". This notion is, therefore very broad (e.g. Payconic, Bancontact) and technology-neutral (in order to keep up with technology and market developments in the field of electronic payments). It is up to the trader to choose the electronic payment method that would be most suitable and appropriate for its specific business (in terms of costs, type of customer, volume of payments, etc.).
Finally, note that these rules do not apply to B2B transactions, only B2C, and that cash payments should still in ,all cases, be made possible. Traders cannot refuse cash payments unless there is a valid reason to do so (e.g., under anti-money laundering laws) or if the payment exceeds EUR 3,000.
The new legislation described above will impact many common practices of announcing price reductions, especially online, whereby traders often do not refer to a ‘real’ reference price. Should you require any assistance in reviewing your price reduction announcements or any other assistance in the field of (digital or non-digital) consumer law, please contact us.