The act of 26 October 2015 concerning amendment of the Economic Law Code and several other amendments includes changes to certain aspects of Book VI – "Market practices and consumer protection" – of the Economic Law Code ("ELC"). Areas affected include labelling, the announcement of price reductions, payment (of advances) for off-premises contracts, and unsolicited communications.
On 30 October 2015, the act of 26 October 2015 concerning amendment of the Economic Law Code and several other amendments was published in the Official Gazette. This act introduces a number of technical and formal corrections, and some modifications as regards content, to the ELC. Book VI ELC has also been modified. The amendments came into force on 9 November 2015.
Labelling
According to article VI.8, section 1 ELC, the compulsory information required for labelling must appear in a language that is understandable for the average consumer, taking into account the region where the product or service is offered to the consumer. Such compulsory information is increasingly being required by European legislation. To ensure that particulars required by European legislation also comply with the language requirement, article VI.8, section 1 ELC also refers to information required for labelling under "regulations of the European Union replacing the provisions of this book or its implementing orders".
Announcements of price reductions
A more fundamental amendment relates to the abolition of the provisions concerning announcements of price reductions. This abolition is a consequence of the judgment of the Court of Justice of 10 July 2014, in which Belgium was found to have failed in its obligations to correctly transpose Directive 2005/29/EC concerning unfair commercial practices (see Court of Justice 10 July 2014, C-421/12, www.curia.eu). The Court stated that the provisions concerning announcements of price reductions – which only permit reference to be made to the reference price, which is the lowest price applied in the month before the price reduction, and which limit the duration of the announcement of price reductions – are in breach of the Directive (see Eubelius Spotlights September 2014).
To comply with this judgment, the legislator has abolished articles VI.18 to VI.21 ELC, which contain the rules concerning announcements of price reductions. The similar rules in article VI.26, §2 and §3 ELC on announcements of price reductions concerning sales are also abolished. Article VI.23, §4 ELC contains similar rules for clearance sales. Even though the Court of Justice did not criticise these rules explicitly, they have also been abolished.
This abolition creates more flexibility for companies with respect to price reductions. However, the explanatory memorandum preceding the act emphasises that this does not mean that every practice concerning the announcement of price reductions is now allowed. The announcements must still comply with the prohibition on unfair business-to-consumer commercial practices laid down in articles VI.92 ff. ELC, and especially with article VI.97, 4° ELC, which prohibits misleading information about the price, the method of calculation, or the existence of a specific price advantage.
Off-premises contracts
The next modification concerns the abolition of the prohibition on demanding an advance or a payment in the case of an off-premises contract before the expiry of a period of seven business days, calculated as of the day after the day of signing the agreement (article VI.67, §2 ELC). As a result of this prohibition, companies had been obliged to deliver the products without any kind of payment or advance during this period. This created unnecessary complexity and heavy administrative charges for the company. At present, the legislator is of the opinion that this prohibition is unjustified and disproportionate. When a consumer places an order, he is protected by the information requirement imposed on the company, and by the withdrawal period of 14 calendar days.
Unfair contract terms
Article VI.83, 23° ELC has been updated. According to this article, a clause was unfair when it designated a judge other than the judge designated by article 624, 1°, 2° and 4° of the Judicial Code, without prejudice to the application of Regulation (EC) 44/2001 of 22 December 2000. That Regulation has been replaced by Regulation (EU) 1215/2012 of 12 December 2012. The text of article VI.83, 23° ELC has been adapted accordingly.
Unsolicited communications
Finally, article VI.110 ELC has also been adapted. The introduction of the Telecom Act of 10 July 2012 brought with it some undesired consequences, and these have now been corrected. The first rectification concerns article VI.110, §2 ELC, which only referred to "subscribers" in the sense of the Telecom Act. As a result, while subscribers to telephone services had the right to object to calls made for marketing purposes, the right of consumers and companies to object to direct marketing, such as personally addressed letters, had been left out. This right has been reintroduced.
Furthermore, two prohibitions have been added. First, the addressee cannot been charged for the fact that he objects to the communication (article VI.110, §3 ELC). Secondly, it is prohibited to hide the identity of the company on behalf of which the communication took place, when sending publicity by means of communication techniques as referred to in article VI.110, §2 (article VI.110, §4 ELC). Communication techniques as referred to in article VI.110, §2 ELC cover all communication techniques other than automated call systems without human intervention or fax messages. This includes, for example, calls with human intervention and personally addressed letters.