On 9 July 2013, the Constitutional Court (the “Court”) annulled Articles 2, 2° and 3, §2 of the Law on 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”). Article 3, §2 of the Law excluded practitioners of liberal professions as well as dentists and physiotherapists from its scope. Article 2, 2° of the Law defined the term “practitioner of a liberal profession” as “any company that is not a trader within the meaning of Article 1 of the Commercial Code and that is subject to a disciplinary body established by law”.
The Court delivered its judgment in the context of an appeal lodged by, amongst others, the Professional Institute of Real Estate Agents (Beroepsinstituut van Vastgoedmakelaars/Institut professionnel des agents immobiliers) in the aftermath of a preliminary ruling delivered by the Court on 15 December 2011. In that ruling, the Court had held that Articles 2, 1° and 2° and 3, §2 of the Law violate the principles of equality and non-discrimination as laid down in Articles 10 and 11 of the Constitution, in that they exclude from the scope of the Law practitioners of liberal professions as well as dentists and physiotherapists (See, VBB on Belgian Business Law, Volume 2011, No. 12, p. 15, available at www.vbb.com). The preliminary ruling of 15 December 2011 had itself been preceded by a similar preliminary ruling of 6 April 2011 (See, VBB on Belgian Business Law, Volume 2011, No. 4, p. 15, available at www.vbb.com).
In its latest judgment, the Court began its analysis by pointing out that, like Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (“the Directive”), on which the Law is largely based, the Law applies to “undertakings”. Referring to the seminal competition law judgments of the Court of Justice of the European Union (“ECJ”) in Pavlov and Wouters (ECJ, joined cases C-180/98 to C-184/98, Pavel Pavlov and Others v. Stichting Pensioenfonds Medische Specialisten; ECJ, case C-309/99, J. C. J. Wouters and Others v. Algemene Raad van de Nederlandse Orde van Advocaten), the Court continued that, under EU law, the term “undertaking” also comprises practitioners of liberal professions. Yet, contrary to the Directive, the Law excludes practitioners of liberal professions, as well as dentists and physiotherapists, from its scope.
Next, the Court considered that, with regard to consumer protection, practitioners of liberal professions and other “undertakings” are in sufficiently comparable situations as they, firstly, both intend to support themselves by virtue of their profession. Secondly, both categories pursue their economic goal either alone or together with others using the legal form of a company. Thirdly, both categories bear the financial risks attached to the performance of their activities since, if there should be an imbalance between expenditure and receipts, they must bear themselves the deficit related to their activities. Finally, while practitioners of liberal professions usually limit or, pursuant to their codes of ethics, have to limit themselves to providing intellectual services, they may also engage in commercial transactions. Conversely, various “undertakings” that are not practitioners of a liberal profession provide intellectual services.
For all these reasons, the Court held that, both for practitioners of liberal professions and other “undertakings”, (i) their conduct on the economic markets must be subject to the same rules; (ii) competition must be ensured; and (iii) the interests of competitors and consumers must be protected.
Finally, the Court admitted that practitioners of liberal professions (i) have a certain social responsibility; (ii) are subject to specific ethical rules; and (iii) are characterised by the fact that they have a high level of independence and a discretion-based relationship of trust with the client. However, the Court continued that, even if these characteristics and values would differ from those of other “undertakings”, this cannot do away with the fact that consumers and competitors of practitioners of liberal professions within the meaning of the Law should benefit from the same level of protection as that provided by the Law. According to the Court, the characteristics and values of the liberal professions will not be endangered by the application of the Law.
In view of the above, the Court declared illegal Article 3, §2 of the Law and, having regard to its close relationship with that provision, Article 2, 2° of the Law.
