The Belgian Prohibition on Joint Offers to Consumers Has Been Abolished: How a Lingerie Coupon Led to a Fundamental Change of the Belgian Commercial Practices Rules

The Belgian prohibition on joint offers to consumers has been abolished : how a lingerie coupon led to a fundamental change of the Belgian Commercial Practices rules.

On 23 April 2009, the European Court of Justice ruled that the Belgian general prohibition on joint offers to consumers is incompatible with the Unfair Commercial Practices Directive.
 
Belgian courts can no longer prohibit joint offers to consumers in a general way. Joint offers can only be prohibited to the extent that they constitute an unfair commercial practice, taking into account the specific circumstances of the offer.

Based on the Court’s reasoning, it is expected that other prohibitions under Belgian law, such as the rules regarding announcements of price reductions and sales, will be abolished.

The European Court of Justice was asked to rule on the compatibility with European law of the Belgian prohibition on joint offers to consumers. The case was brought to the Court’s attention by two requests of preliminary rulings from the President of the Commercial Court of Antwerp. Altius represented one of the parties challenging the compatibility with EU laws of the Belgian prohibition on joint offers.

In the first case, a women's magazine contained a coupon entitling the readers to a reduction when purchasing lingerie. In the second case, a fuel supplier offered its customers a free car assistance service. In both cases, the claimants argued that the offers breached the Belgian prohibition on joint offers.

The Belgian Trade Practices Act prohibits in a general way any joint offer made to consumers, except for a limited number of exceptions. A joint offer is defined as any offer (even a free offer), of goods or services, that is made dependent on the purchase of other goods or services.

The European Court of Justice ruled that the Belgian general prohibition on joint offers to consumers is contrary to European Directive 2005/29 on Unfair Commercial Practices. The Unfair Commercial Practices Directive contains a general prohibition of unfair commercial practices, specified in two sub-prohibitions of misleading and aggressive commercial practices, and a number of specific misleading and aggressive commercial practices (the so-called “black list”). The Unfair Commercial Practices Directive imposed harmonisation on the member states, preventing them from implementing any measures concerning unfair commercial practices that goes beyond the provisions of the Directive.

In its judgment of April 23, 2009, the European Court of Justice ruled that the general Belgian prohibition on joint offers, which is not mentioned on the Unfair Commercial Practices Directive’s black list, went beyond the maximal harmonisation of the Unfair Commercial Practices Directive.

With this judgment, the 70-year old Belgian prohibition on joint offers to consumers falls. Belgian courts will no longer be able to ban any joint offer to consumers in a general way. Joint offers to consumers can only be prohibited pursuant to the general prohibition on unfair commercial practices, i.e. by taking into account the specific circumstances of the case.

The impact of this judgment on Belgian commercial practices will be significant. First, since Belgium was an "outsider" in Europe by prohibiting joint offers to consumers in a general way, pan European commercial campaigns including joint offers to consumers always had to be customised for use in Belgium. This will no longer be necessary.

Also, it is expected that based, on the European Court’s reasoning, other rules in the Belgian Commercial Practices Act will be challenged. For example, the rules regulating sales (‘solden’/’soldes’), the black-out period (‘sperperiode’/’période d’attente’) and the rules regarding the announcement of price reductions will no longer be defensible in light of the Court’s reasoning. This is also the opinion of European Commission, which recently issued a formal notice of default to the Belgian State for not having abolished the rules on joint offers, sales and price reductions while implementing the Unfair Commercial Practices Directive.

It is believed that other specific Belgian rules regulating the use of the word ‘liquidation sales’ (‘Uitverkoop’/’Liquidation’), forced sales (‘afgedwongen verkoop’/’achat forcé’) and chain sales (kettingverkoop‘/’vente en chaîne’) will also be subject to discussion, as these rules seem to govern commercial practices in a way that goes beyond the Unfair Commercial Practices Directive. However, in practice, these commercial practices will remain prohibited, since they appear on the "black list" of the Unfair Commercial Practices Directive.

It is expected that Belgium will soon abolish (or at least change) its rules on joint offers, sales and announcements of price reductions to come into line with the European Court’s case law and to avoid penalties for not having correctly implemented the Commercial Practices Directive.

For more information on the judgment of the European Court of Justice and its consequences under Belgian law, please contact Paul.Maeyaert@altius.com or Gerrit.Vandendriessche@altius.com or contact our Brussels office by phone at +32 2 426 14 14.

(Cases c-299/07, Galatea v. Sanoma Magazines and c-261/07, VTB-VAB v Total Belgium)