In his response of 4 September 2013 to a written parliamentary question, the Minister for Consumer Affairs, Johan Vande Lanotte, has given insight in how the future rules on sales at a loss, as contained in Book VI “market practices and consumer protection” of the prospective new commercial code (“Book VI”), will look like. For the status of the Bill containing Book VI, see VBB on Belgian Business Law, Volume 2013, No. 9, p. 3, available at www.vbb.com.
In line with his earlier statements on the topic, Minister Vande Lanotte asserts that the prohibition of sales at a loss aims to protect individual retailers and SMEs against competition from large chains which, contrary to individual retailers and SMEs, can sell certain products at a loss and recoup the resulting losses elsewhere (i.e., make the losses up with sales of other products).
This allegedly being the sole goal of the prohibition of sales at a loss, Minister Vande Lanotte has defended on earlier occasions that this prohibition would be compatible with EU law (See, VBB on Belgium Business Law, Volume 2013, No. 5, p. 9 and No. 7, p. 16, available at www.vbb.com). As reported in March (See, VBB on Belgian Business Law, Volume 2013, No. 3, p. 15, available at www.vbb.com), the Court of Justice of the European Union (“ECJ”) held on 7 March 2013 that the Belgian prohibition of sales at a loss is incompatible with EU law in so far as that prohibition pursues objectives relating to consumer protection (ECJ, case C-343/12, Euronics Belgium CVBA v. Kamera Express BV and Kamera Express Belgium BVBA).
Interestingly, in his answer to the parliamentary question, Minister Vande Lanotte points out that Book VI will relax the prohibition of sales at a loss. The novelty will be that businesses will be able to consider the volume discounts which they actually obtained in the previous year for the good at issue when calculating their reference purchase price (i.e., the purchase price against which it is to be assessed whether or not there is a sale at a loss). It will be possible to deduct four-fifths of the thus obtained volume discount from the reference purchase price. According to Minister Vande Lanotte, this novelty should allow healthy and fair competition between companies.
