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Case detail



Directive article Article 11 al2 (a)
Article 12 al1 (a)
National ID 55/2011
Country Belgium Decision date 06/04/2011
Common name Decision type Other
Court Grondwettelijk Hof Plaintiff(s)
Court translation Constitutional Court Defendant(s)
Subject Scope of the UCP Directive – Full harmonisation
Keywords courtenforcementjudicial recoursegeneral discussion on new case law

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Headnote

Commercial practices, performed by liberal professions, fall under the ambit of the UCP Directive.

Facts

Plaintiff, a speech therapist, worked in an association together with physiotherapists, psychologists and other speech therapists. When the plaintiff stopped working for the association, she sent an email to the customers of the association, stating that she would move to another practice and inviting the customers to contact her for further services. The defendant cited the plaintiff before the president of the commercial court in Antwerp, requesting that the plaintiff be ruled to have committed an unfair commercial practice, and to prohibit the plaintiff to practice within certain geographical boundaries of the association.

However, the court in first instance ruled that a speech therapist is traditionally seen as a "liberal profession" to which the Belgian market practices act is not applicable. This has 2 consequences, according to the court's president: (a) under Belgian law, there is no general prohibition on unfair commercial practices applicable to persons conducting a liberal profession; and (b) the court of first instance's president is competent, instead of the commercial court's president. However, taking into account the European Court of Justice's interpretation of the notion "undertaking", the first judge referred for a preliminary ruling by the Belgian Constitutional Court.

Legal issue

Do commercial practices, performed by liberal professions, fall under the ambit of the UCP Directive?

Decision

The court first notices that liberal professions are regulated by the Belgian Act of 2 August 2002 concerning misleading and comparative advertising, abusive contract terms and distance selling for liberal professions. This Act is not yet adapted to the Directive 2005/29 as it does not contain a general prohibition on unfair commercial practices although this is required on the basis of the UCP Directive, so the court holds.

Further, the court clarifies that, taking into account the interpretation of the European Court of Justice of the notion "undertaking", liberal professions are also a form of undertaking in the sense of the European law.

Next, the court indicates that, due to the lack of implementation of the provisions of the UCP Directive, consumers and competitors do not dispose of a right to ask for a cease-and-desist order against unfair commercial practices, when such a practice is conducted by a person exercising a liberal profession.

  URL Decision Decision full text
EN N/A
FR http://www.const-court.be/
NL http://www.const-court.be/

Result

As a result, the Belgian Constitutional Court ruled that the fact that no possibility exists under Belgian law to obtain a cease-and-desist order against persons exercising a liberal profession who conduct an unfair commercial practice, is discriminatory and thus unconstitutional.

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