On 13 September 2012, the European Commission (the "Commission") brought an action against Belgium before the Court of Justice of the European Union (the "ECJ") for its alleged failure to transpose fully Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market ("Directive 2005/29/EC"). This is the final step in the infringement proceedings launched by the Commission against Belgium in February 2009 (See, VBB on Belgian Business Law, Volume 2009, No. 5, p. 14; No. 6, p. 15; No. 7, p. 11 and No. 11, p. 13, available at www.vbb.com).
Belgium initially transposed the harmonised European rules on consumer protection in the Law of 14 July 1991 concerning trade practices and the information and protection of consumers (Wet van 14 juli 1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument/Loi du 14 juillet 1991 sur les pratiques du commerce et sur l'information et la protection du consommateur – the "Law of 14 July 1991").
In view of the infringement proceedings launched by the Commission in February 2009 and in order to transpose Directive 2005/29/EC, the Parliament adopted the Law of 6 April 2010 concerning 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"). The Law of 6 April 2010 was intended to update the business to consumer and business to business rules and bring them in line with European legislation.
However, in the Commission’s view, the Law of 6 April 2010 still does not conform with various European consumer protection rules. On 14 March 2011, the Commission again urged Belgium to amend its national legislation (See, VBB on Belgian Business Law, Volume 2011, No. 3, p. 12, available at www.vbb.com).
The proceedings launched by the Commission before the ECJ cover the following three issues.
First, the Commission maintains that by excluding practitioners of liberal professions, dentists and physiotherapists from the Law of 14 July 1991, Belgium failed to comply with the obligation to transpose Directive 2005/29/EC. Even though the Commission still refers to the now repealed Law of 14 July 1991, the exclusion of practitioners of liberal professions, dentists and physiotherapists from the scope of application of the business-to-consumer commercial practices legislation was maintained in Article 3, §2 of the Law of 6 April 2010. The Commission's objections should thus also apply to the Law of 6 April 2010.
On 6 April 2011, the Belgian Constitutional Court held in reply to a reference for a preliminary ruling that Article 3, §2 of the Law of 6 April 2010 excluding practitioners of liberal professions, dentists and physiotherapists from the business-to-consumer commercial practices legislation, violates the principles of equality and non-discrimination as laid down in Articles 10 and 11 of the Constitution (See, VBB on Belgian Business Law, Volume 2011, No. 4, p. 15, available at www.vbb.com).
Second, the Commission considers that Articles 20, 21 and 29 of the Law of 6 April 2010 are not in line with Directive 2005/29/EC. These provisions limit the possibility for traders to organise sales and offer rebates to consumers, inter alia by regulating sales and rebates announcements. On the other hand, the rules on blackout pre-sales periods, which prohibit the announcement of price reductions during pre-sales periods, are not at issue in the present proceedings. This comes as a surprise because, even though the Commission announced on 29 September 2011 that it would take Belgium to the ECJ on this issue (See, VBB on Belgian Business Law, Volume 2011, No. 9, p. 11, available at www.vbb.com), it would seem that it has still not initiated such a procedure.
Last, the Commission objects to the Belgian rules prohibiting, with limited exceptions, doorstep selling for products above EUR 250.
A judgment of the ECJ on the alleged failure on the part of Belgium to implement correctly these three aspects of Directive 2005/29/EC can be expected in 2013 or early 2014.
