Proposition 50K1469

Projet de loi relatif à la publicité trompeuse et à la publicité comparative, aux clauses abusives et aux contrats à distance en ce qui concerne les professions libérales.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Oct. 24, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive consumer protection advertising malpractice advertising liberal profession

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Discussion ¶

May 29, 2002 | Plenary session (Chamber of representatives)

Full source

The draft law on misleading and comparative advertising, the unlawful clauses and the remote agreements on freelance professions has a dual objective. On the one hand, the draft aims to align Belgian legislation on freelance professions with three European directives. On the other hand, the draft aims to group different provisions applicable to the free professions into a single law. Their

The three directives are, in the first place, the 1997 Directive on the protection of consumers in relation to distance contracts, in the second place, the Directive of 6 October 1997 on misleading advertising in order to regulate comparative advertising and, in the third place, the Directive of 19 May 1998 on the cessation of infringements in the context of the protection of consumer interests.

The law of 21 October 1992 on misleading advertising on freelancers and the law of 3 April 1997 on unfair terms and agreements concluded between freelancers and their clients were incorporated into the draft.

The committee held five meetings to discuss the draft. She requested the Minister responsible for Public Health, Economy, Medium, SMEs and the Minister of Justice in writing the opinions they had received from the various organisations and institutions representing the freelance professions within their competence. The Order des baraux francophones et germanophones and the National Council of the Order of Pharmacists submitted their observations directly and on their own initiative to the committee. Their

During the discussion in the committee, particular attention was paid to the following points. I will give a summary. The national order of pharmacists had asked medicines and other health products would be subject to stricter regulations, especially for distance sales. The pharmacists requested that the distant sale of medicinal products be expressly prohibited and that comparative advertising for medicinal products would remain unauthorized, in particular with regard to public health. The Minister’s representative replied that this is a framework draft which always refers to possible stricter laws that may prohibit advertising in its entirety as well as distance sales. Ultimately, however, an amendment was adopted by Mrs. Gilkinet and Mr. Tavernier which provides that the King may, following the advice of the professional regulatory authorities, prohibit or restrict comparative advertising in order to safeguard public health.

A second discussion concerned the definition of a freelance as defined in Article 2 of the Act. The question was asked whether the draft took into account the reality that free professions carry out their activity in a company. Mr Fournaux had submitted an amendment in this regard. As the representative of the Minister could follow the argument, the Government Amendment 17 was immediately opted for, which added a new Article 3. Where a freelance profession is exercised within the framework of a legal person, without that legal person being the titularis of a freelance profession, the legal person is also bound by the provisions of the law.

The third discussion concerned the amendment no. 4 by Mrs. Barzin and Mr. Van Overtvelt. Article 5, paragraph 4, stipulated that, by way of derogation from paragraph 2, the professional regulatory authorities may, by a decision confirmed by the King, prohibit or restrict comparative advertising to the extent necessary to safeguard the dignity and deontology of the freelance in question. However, the rules of professional ethics of certain professions do not need to be approved by a royal decree, in particular for the legal profession. Thus, this article imposed an additional obligation which was not liable and not required under the Directive. The amendment was intended to enable certain professional regulatory authorities to prohibit or restrict comparative advertising in accordance with the practice they normally use when establishing their deontological rules and not by a decision ratified by the King. Mr Fournaux had submitted a similar amendment. Despite the argument of the representative of the minister that it was in no way an opportunity decision of the King because he cannot take initiative in this regard, the amendment of Mrs. Barzin and the gentlemen Van Overtveldt and Fournaux was adopted. The law has been amended in that sense. Their

In accordance with Amendment No. 8 of Mr Fournaux and the corresponding amendment no. 5 of Mrs. Barzin and Mr. Van Overveldt was noted that the King retains that possibility for the free professions that have a deontological norm framework but not a professional regulatory authority. Their

The entire draft law as amended was unanimously adopted.

The European Directives require Belgium to adapt its legal framework for liberal professions with regard to misleading and comparative advertising, abusive clauses and distance contracts. by

As a committee, my group was ⁇ attentive to the consequences of the bill for the liberal professions working in the health sector. Indeed, if we could join in a arrangement aimed at making more homogeneous the different national legislations of the countries that are part of a European process and to carry out today this work for the liberal professions, we also considered that public health falls within a higher principle that must always be protected. by

We have therefore requested that the opinions of the Ministers of Health and the health orders concerned may be communicated to the members of the committee. We would like to especially thank the people who have contributed to this important issue, as well as the members of the committee who have accepted our request. During the review of the bill, we examined each article to the lump of the higher principle of public health. Each time, the question we asked ourselves was the following: Does the proposed text entail a limitation of laws aimed at protecting public health or a limitation of the competence of the Minister of Public Health, a competence that the Minister must be able to retain in order to exclude certain activities from the commercial circuit in order to protect the health of the population.

During this careful examination, we found that two problems arose. Both were met. Indeed, it was important to predict in the project — and this was the subject of an important discussion between all the members of the committee and our President, Mr. Graphed — that the legal person, holder of a liberal profession (for example, in a pharmacy) cannot escape legislation due to its status as a legal person. In other words, it was necessary to provide in the law that when a liberal profession is exercised within the framework of a legal person without the latter being the holder of a liberal profession, that legal person is also bound by the provisions of the law. The amendment that the Government has submitted to Article 2 meets this concern.

The other point that concerned us was related to comparative advertising. Indeed, on all other points, existing laws limit de facto, when public health is concerned, the new rights created. Thus, for example, it is not possible in Belgium to establish a business of distance sales of medicines since the sale of medicines is regulated in our country by very strict laws that continue to exist regardless of the project that occupies us today.

On the other hand, the opening of comparative advertising to liberal professions bothered us as much as the initial project provided for the possible limitation only to "only protect the dignity and deontology of the liberal profession concerned". by

It appeared to us that it was essential to provide for the limitation also for public health reasons. That is why we have introduced — and obtained — an amendment that makes it possible to respect what some call the health exception. Thanks to our amendment, the King will be able to prohibit or restrict, after the advice of professional authorities, comparative advertising to preserve public health. We are happy to have obtained it.

Since, at the end of our work, our concerns are lifted thanks, on the one hand, to the government amendment and, on the other hand, to our amendment for the health exception, my group will vote on the bill that is submitted to us.

Mr. Minister, would you like to make another statement?

and yes.

I see that the committee has devoted five meetings to it and I note that our legal service has also made some legislative-technical improvements. Mr. Minister, you have the word.

Mr. Speaker, colleagues, my presentation will be ⁇ brief. The report presented by the reporter highlighted the double objective of the bill. The legal aspects of information society services, e-commerce, will be regulated by a separate legislative initiative. Their

The various bodies did not issue fundamental remarks, but only punctual.

As regards comparative advertising, the principle of deviating from admissibility after amendment was accepted. The protection of the dignity of the profession depends on whether or not a professional order exists. If a professional order exists, it may itself issue stricter rules; if no one exists, it is up to the King to issue any stricter rules. For the protection of public health, it is irrelevant whether or not a professional order exists: the King may, if necessary, after the advice of the professional order, lay down stricter rules.

I must also point out that the law applies to liberal professions, whether legal or natural persons, even if they have the employee status, provided that they have technical independence.

De verkoop op afstand van geneesmiddelen is niet explicit in het ontwerp opgenomen. The draft determines clearly that the principle is permitted, keeping stricter laws. It comes actually hierop neer: de client kan elektronisch bestellen, kan met de apotheker communiceren, but must self de products komen ophalen. As far as arts are concerned, it can, of course, never be a matter of consultation at a distance. Finally, Mr. Speaker, a few exceptions have been provided for financial services that are rendered. In this area, we wanted to ⁇ full harmonisation with the Trade Practices Act. I invite the House to approve the bill as presented.