B2B legislation in the spotlight

Unfair contractual terms and misleading and aggressive commercial practices harming consumer interests have been tackled by the European legislator for the last few decades. The Directive of 5 April 1993 (on unfair terms in consumer contracts) and the Unfair Commercial Practices Directive of 11 May 2005 (2005/29/EC) are both instruments reflecting the European legislator’s will to enhance the protection of the consumers.

However, the protection of economic interests or welfare in commercial transactions is not limited to the B2C sphere and has been expanding to the B2B context over the last decade Consider the Directive of 12 December 2006 concerning misleading and comparative advertising (2006/114/EC), the Directive of 17 April 2019 aiming at reducing unfair trading practices in business-to-business relationships in the agricultural and food supply chain (2019/633) and the Regulation of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services.

The Belgian legislator has adopted a similar approach. In a Law of 4 April 2019, the latter recognises the existence of imbalanced bargaining positions, likely to lead to unfair practices in B2B commercial relations and the need to prohibit them or to frame their consequences.

The Law of 4 April 2019 targets and prohibits three main types of unfair practices in the Code of Economic Law:

  • Unfair contractual terms (Articles VI.91/2 and ff.), prohibited as from 1 December 2020
  • Unfair (aggressive and misleading) market practices (Articles VI.104/1 and ff.), prohibited as from 1 September 2019
  • The prohibition of the abuse of economic dependence (Article IV.2/1). The entry into force, initially scheduled for 1 June 2020, has been postponed by a Law of 27 May 2020 and is now scheduled for 22 August 2020.

It must be noted that the B2B protection regime is regardless of the size of the businesses involved (small to larger enterprises) and regardless of the nature and of the object of the commercial relations at stake (with a few exceptions).

Given its reach, it will significantly impact the way businesses organise their commercial relations in their contracts (unfair contractual terms) or otherwise (unfair market practices).

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Our B2B legislation in the spotlight series uncovers the B2B protection regime fighting unfair contractual terms and unfair market practices, in a practical and sectorial approach, following a pattern of questions answered in a direct and succinct style.

In the spotlight guide, we give clients:

  • an overview of the prohibition of unfair terms in B2B contracts and, 
  • a glimpse of the prohibited unfair market practices. 

In the following editions of B2B legislation in the spotlight, we will focus on the impact of the B2B protection regime on the following sectors:

  • Banking and insurance sectors, 
  • Technology and telecoms, media and business services sectors,
  • Real estate, energy and infrastructure sectors,
  • Dispute resolution, and
  • Corporate and M&A sectors.

Find below an overview of all editions of the B2B legislation in the spotlight series (available to clients on our Knowledge Portal).

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