On 10 July 2014, the Court of Justice of the European Union (the "ECJ") held that Belgium had failed to properly implement certain provisions of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (the "Directive").  This judgment is the result of a suit brought by the European Commission (the "Commission") before the ECJ on 13 September 2012 (see, VBB on Belgian Business Law, Volume 2012, No. 11, p. 11, available at www.vbb.com). The Commission alleged that Belgian law does not comply with the Directive in three respects.

First, the Commission argued that, contrary to the Directive, Belgium unlawfully excluded practitioners of liberal professions (vrij beroep/profession libérale), dentists and physiotherapists from the scope of the now defunct Law of 6 April 2010 on market practices and consumer protection (Wet betreffende marktpraktijken en consumentenbescherming / Loi relative aux pratiques du marché et à la protection du consommateur – the "Law of 6 April 2010").

The ECJ agreed with the Commission.  In its defence, Belgium did not dispute the Commission's position, but pointed out instead that prior judgments of the Belgian Constitutional Court had already declared the exclusion of these professions to be unconstitutional. Consequently, Belgium argued, the relevant provisions of the Law of 6 April 2010 had already been made inapplicable by Belgian courts.  The ECJ dismissed this line of defence, stating that "a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations under rules of EU law".  Moreover, the ECJ indicated that even settled case-law of a Member State cannot achieve the clarity and precision needed to satisfy the requirement of legal certainty.

Second, the Commission contested the following rules on price reductions set out in Articles 20, 21 and 29 of the Law of 6 April 2010:

  • price reductions applied during sales periods must be compared to the lowest price applied throughout the month prior to the announcement of the price reduction; and
  • a price reduction must not last longer than a month, nor for less than a day.

The ECJ followed the Commission and found that Articles 20, 21 and 29 of the Law of 6 April 2010 infringe the Directive.  The ECJ held that the Directive carries out a complete harmonisation, as expressly stated in Article 4 of the Directive.  Consequently, Member States are not allowed to adopt more restrictive measures than those laid down in the Directive, even when such measures would ensure a higher level of consumer protection.  Belgium had argued that these more restrictive measures remained permissible under the minimum harmonisation clause in Article 10 of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection regarding the indication of the prices of products offered to consumers ("Directive 98/6/EC").  However, the ECJ dismissed this argument, considering that Articles 20, 21 and 29 do not fall within the scope of Directive 98/6/EC.

Third, the Commission targeted the prohibition, with limited exceptions, of all door-to-door sales at the home of the consumer for products or services exceeding EUR 250, as set out in Article 4, §3 of the Law of 25 June 1993 on the exercise and organisation of travelling trading and fairground activities (Wet betreffende de uitoefening en de organisatie van ambulante en kermisactiviteiten / Loi sur l'exercice et l'organisation des activités ambulantes et foraines), as well as the prohibition on itinerant trading of certain products, including precious metals and stones and fine pearls, as set out in Article 5(1) of the Royal Decree of 24 September 2006 concerning the exercise and organisation of travelling trading activities (Koninklijk Besluit betreffende de uitoefening en de organisatie van ambulante activiteiten/Arrêté royal relatif à l'exercice et à l'organisation des activités ambulantes).

Again, the ECJ found that these provisions infringed the Directive.  Observing once more that Article 4 of the Directive envisages a complete harmonisation, the ECJ held that by maintaining these rules, Belgium failed to fulfil its obligations in transposing the Directive.

As a result of this ruling by the ECJ, Belgian courts petitioned not to apply the above rules will be obliged to do so.  Moreover, Belgium will have to amend the above rules in a way that complies with the Directive, or risk being pursued in damages actions by the Commission.  With regard to the first issue, it should be noted that on 31 May 2014, the exclusion of practitioners of liberal professions, dentists and physiotherapists was already removed from the Law of 6 April 2010. 

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