Enforcement fiche for BelgiumB a c k
|I. ADMINISTRATIVE ENFORCEMENT|
|Which administrative mechanisms are available to enforce the UCP Directive?||
In Belgium, the Directive is implemented by the Belgian Law on market practices and the protection of consumers of 6 April 2010 ("Market Practices Act"). The general enforcement of this Act is handled by the Directorate General Control and Mediation (ADCB) (in Dutch: "Algemene Directie Controle en Bemiddeling"; in French: "Direction Générale du Controle et de la Médiation"), which is part of the Federal Public Service of Economy, SMEs, Self-employed and Energy (FPS Economy). The ADCB proactively enforces the Market Practices Act, and is also competent for receiving administrative complaints. The general website of the ADCB can be found at http://economie.fgov.be
|Who can file administrative complaints?||
The ADCB allows administrative complaints to be filed by every natural or legal person. There is no need to prove a legitimate interest.
|Do any specific procedural requirements apply to filing administrative complaints?||
A complaint can be filed in three ways: (1) The complaint can be directed to the ADCB by submitting an online form on the website of the FPS Economy (http://economie.fgov.be/nl/geschillen/klachten/waar_hoe_klacht_indienen/online_klacht/index.jsp) (2) It is also possible to download a form from the same website and send it in hard copy form to the FPS Economy (http://statbel.fgov.be/nl/geschillen/klachten/waar_hoe_klacht_indienen/index.jsp) (3) If the complainant desires a more personal settlement of the procedure, he can request a personal meeting with one of ADCB’s staff members.
|Do the administrative authorities have an obligation to investigate the complaint?||
Until December 2009, the ADCB investigated every complaint it received. However, as this consumed a lot of resources, the ADCB decided to launch a rationalisation programme, following the example of some other Member States. Although this rationalisation programme was only introduced in December 2009, it has already resulted in a dismissal of 40% of all complaints. Recently, the ADCB has also started to take into account the financial loss suffered by the complainant. If no financial loss, or only a very small financial loss, has been suffered, there is a high probability that the complaint will not be investigated by the ADCB.
|Are there any specific requirements regarding the provision of evidence to the competent authorities?||
A competent official can require a trader to provide the evidence as to the accuracy of any statements disclosed in a commercial practice (article 103 of the Market Practices Act).
|II. ENFORCEMENT THROUGH COURT ACTION|
|Which court actions are available to enforce the UCP Directive?||
Article 2 of the Law regarding the regulation of some procedures in the framework of the Market Practices Act provides for a specific cease-and-desist procedure, handled by the President of the Commercial Court, to counter infringements of its provisions. In addition, a general claim for civil damages can be filed before the competent civil courts.
|Who can start a court action?||
Article 113 of the Market Practices Act explicitly allows the FPS Economy, the (inter)professional associations and the consumer associations to initiate a cease-and-desist procedure, even when they have no individual interest in the case.
|Can court actions be initiated by competitors?||
Yes, although the applicant must prove its direct and legitimate interest in order to initiate a cease-and-desist procedure or a procedure for civil damages (see infra).
|Can the case be handled through an accelerated procedure?||
The cease-and-desist procedure follows a procedure which is similar to the general interlocutory proceedings ("zoals in kort geding" - "comme en référé"). This means that the case can typically be decided in a short period of time, as the terms and the rules of procedure are similar to those of the general interlocutory proceedings. The short term is, however, not guaranteed, since urgency is not a requirement for filing a case under the cease-and-desist procedure. Although it is possible to use general interlocutory proceedings instead of the specific cease-and-desist procedure, it is generally advisable to the use cease-and-desist procedure, as the latter procedure was specifically introduced for countering infringements of the Market Practices Act. Moreover, the cease-and-desist procedure is a procedure as to the merits.
|Are there any specific requirements regarding the provision of evidence to the court?||
The Belgian Market Practices Act does not contain any provision on this matter. Consequently, the general rules on evidence as laid down in the Belgian Judicial Code are applicable. According to article 871 of the Judicial Code, the court can order any party to disclose all evidence they dispose of.
|What are the possible civil sanctions and remedies for the infringement of the UCP provisions?||
The sanction that results from a cease-and-desist procedure is the cessation of the alleged infringement. The President of the Commercial Court can also order the publication of his judgement (see infra). As civil sanction, Article 41 of the Market Practices Act provides that the consumer may ask the court that the trader shall reimburse the sums paid by him, without restitution of the delivered product, in case of certain unfair commercial practices. In case of an unsolicited delivery of products, this sanction must be applied automatically (hence, without the consumer being required to ask for this sanction).
Furthermore the competent civil court can award damages in the framework of a claim for civil damages based on the article 1382 of the Belgian Civil Code (see infra). These damages, however, should rather be interpreted as indemnifying measure than as sanctions. As is the case for most civil procedures under Belgian law, the Court can also order coercive civil fines, in order to ensure that the decision will be effectively complied with.
|What are the possible criminal sanctions for the infringement of the UCP provisions?||
Infringements of the Belgian Market Practices Act are punishable with imprisonment and a series of criminal fines, ranging from 250 EUR to 20.000 EUR (augmented by surcharge). More specifically these criminal sanctions are:
- A criminal fine from 250 to 10.000 EUR for inter alia inertia selling or conducting certain misleading or aggressive commercial practices (art. 124, 13° of the Belgian Market Practices Act);
|What are the possible administrative sanctions for the infringement of the UCP provisions?||
The ADCB cannot impose fines or order injunctions. The powers of the ADCB are limited to ordering the immediate cessation of unlawful auctions (art. 121 of the Belgian Market Practices Act) and proposing an administrative settlement to the infringer, for certain infringements (art. 136 of the Belgian Market Practices Act). In case the infringer does not accept the administrative settlement proposed by the ADCB, the ADCB will have to transfer the file to the public prosecutor.
|What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction?||
Misleading and aggressive commercial practices can be terminated by initiating a cease and desist procedure. In practice this procedure will be initiated by a competitor or the public prosecutor, who are not a party to the individual transaction with the consumer. The individual transaction will therefore not be affected by a cease and desist decision, since a judicial decision only produces effects between the parties to the procedure, in casu the vendor and his competitor or the public prosecutor. Nevertheless, a procedure can also be initiated by the consumer who contemplates that the contract is void because he has concluded the contract with a mistaken consent. He will thus allege that this mistaken consent originates from inter alia error, fraud or violence. If a competent court concludes that the vendor has conducted an aggressive or misleading commercial practices, the consumer will be able to prove the origin of his mistaken consent and thus his contract will be declared void.
|How can consumers get redress/compensation (e.g. through collective actions)?||
Belgian law does not allow a collective settlement of claims for civil damages (class actions). However, consumers do have the possibility of filing a claim for civil damages, even when they did not initiate a cease-and-desist procedure before the Commercial Court. Such claim for damages is subject to the general rules of Belgian tort law (art. 1382 of the Belgian Civil Code), which provide that an infringement of a legal provision (such as the Belgian Market Practices Act) constitutes a fault that can lead to damages, if a causal link with the loss is demonstrated. Although such claim for damages can be filed without having initiated the cease-and-desist procedure, it is nevertheless advisable to do so, because the Civil Court will be bound by the decision of the President of the Commercial Court. Hence, should the President of the Commercial Court find that the claimant has effectively suffered damages as a result of the unfair trade practice infringement, the claimant will only have to prove the size of the damage when he files a claim for compensation before the Commercial Court.
|Can the administrative authorities or the courts require the publication of their decisions?||
The President of the Commercial Court can order that his judgment (or a summary thereof) be published either on the inside or outside of the establishment of the infringer or in the newspapers, at the expenses of the infringer, provided that this publication can contribute to the termination of the infringement (Art. 130 Market Practices Act). The ABCD does not have the power to order the publication of its decisions.
|IV. OTHER TYPES OF ENFORCEMENT|
|Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive?||
Belgium has several self-regulatory enforcement systems. The most relevant example is the Jury for Ethical Practices regarding Advertising ("JEP") (in Dutch: "Jury voor Ethische Praktijken inzake Reclame"; in French: "Jury d'Ethique Publicitaire"). The JEP is a self-regulatory body established by the Council for Advertising (in Dutch: "Raad voor de Reclame"; in French: "Conseil de la Publicité"). At the request of advertisers, it gives preliminary advice on intended advertisements and investigates complaints against actual advertisements, in which case the JEP will recommend the advertiser to either change or stop the advertisement. The body of rules that the JEP uses to evaluate the advertisements includes both traditional rules (including the Belgian Market Practices Act), and norms of good taste and decency. When the advertiser refuses to comply with the recommendations of the JEP, the JEP will request the Belgian media (newspapers, magazines, TV stations, …) not to broadcast the challenged advertisement. Since the majority of the media is affiliated with the Council for Advertising (of which the JEP is its executive and supervising body), the JEP has important moral authority. In practice, advertisers will therefore often comply with the JEP's recommendations.
|Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)?||
The most relevant mediating services are the Ombudsman for Telecommunication and the Ombudsman of the Insurance Sector. Ombudsman for Telecommunication (Dutch: "Ombudsdienst voor Telecommunicatie"; French: "Service De Médiation Pour Les Télécommunications") The Ombudsman deals with complaints from consumers about their telecom provider. He formulates advice and tries to settle the dispute. In order to acquire a better understanding of the pending complaints, the Ombudsman can ask the telecom provider for any necessary information. Although the Ombudsman has important moral authority, he cannot impose any sanctions. Ombudsman of the Insurance Sector (Dutch: "Ombudsman van de verzekeringen" / French: "Ombudsman des assurances") This private body investigates complaints from consumers against an insurance company; mediates in order to facilitate a settlement; decides on issues regarding the application of the section "consumers" in the code of conduct of insurance companies and intermediaries; and provides advice and recommendations. Although this ombudsman has important moral authority, he cannot impose sanctions.
On the internet site www.ombudsman.be you will find a list of some mediating and ADR services.