Proposition 51K2940

Projet de loi relatif aux accords de consommation.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Feb. 27, 2007

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

consumer protection

Voting ¶

Voted to adopt

Vooruit Ecolo PS | SP Open Vld MR

Party dissidents ¶

• Ingrid Meeus (Open Vld) voted to adopt.
• Ingrid Meeus (Open Vld) voted to adopt.

Contact form ¶

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Discussion ¶

March 29, 2007 | Plenary session (Chamber of representatives)

Full source

Deputy Prime Minister and Minister of Budget and Consumer Affairs, Ms. Freya Van den Bossche explained the bill.

Over the past 30 years, the legislature has, by means of general or special rules, significantly interfered in the relations between sellers and consumers, in the areas of commercial practices, financial services and consumer safety.

However, the law cannot resolve all situations once and for all. Therefore, new forms of regulation have emerged, such as codes of conduct, charters and the extrajudicial handling of complaints. The purpose of this bill is to formalize this type of negotiation between business professionals and consumers and to integrate the agreements obtained into a legal framework. Such consumer agreements are more suitable to go into detail. They are smoother and faster in terms of changes and involve all parties from the beginning in the drafting of the rules, which only improves compliance with the approved provisions.

Where negotiations between organisations lead to a result, the agreement, as an expression of the standard on fair trade practices, shall apply to the entire sector concerned. Competent officials of the administration may verify their compliance. If necessary, in accordance with Article 101 of the Commercial Practices Act, a process-verbal of the warning may be drawn up. In case of non-compliance, sanctions may be imposed in accordance with Article 103 of the same law.

Ms. Pieters points out the many critical comments that have come to the draft law, including from the Commission on Illegal Conditions. She therefore proposes to hear the representatives first in a hearing. The Minister cannot be found for this, as the members of the committee are very divided on the content and on whether or not to issue an opinion. However, she is, of course, willing to conform to the wisdom of the committee. The proposal to organise hearings is rejected with eight votes against one vote for and one abstinence, which Ms. Pieters refuses to further debate on the content of this bill. She will keep her intervention on this subject in the plenary session.

Ms. Karine Lalieux emphasizes that the draft law was not implemented overnight. In this committee, we have already talked about codes of conduct and self-regulation. The draft provides a system of co-regulation with consumer organisations.

Magda De Meyer also notes that this design does not simply fall out of the air, since there is already an opinion from the Consumer Council dated from 2003. It emphasizes the importance of the draft law, which is the closing part of many initiatives related to consumer protection.

The draft law, as amended, will be adopted provided that some technical corrections are adopted with 10 votes against 1 votes for 1 abstinence.

Mrs. Peters has the word in the general discussion.

Mr. Speaker, Mrs. Minister, colleagues, I thank Mr. T'Sijen for his report. It took approximately as long as the processing of this bill.

As Mr. T'Sijen has said, I did not really want to give a speech during the discussion of the bill in the committee because the majority, one after another, did not want a hearing. By the way, the Minister, as mentioned in the report, made very clear that she had absolutely not seen a hearing. This has never happened in the business committee. The question of organizing a hearing was always addressed, and the hearings were always very enriching. That this was so categorically rejected, even with a clear question from the Commission on Illegal Conditions, the VBO and the mid-range organizations, is unheard of.

It is clear that this is only a political deal, which has been decided for a long time and where the decisions concerned do not need questions. Each parliamentary member of the majority bows and participates in the political arrangement. The political deal that we are talking about here concerns the shopping Sundays, desired by the Open Vld and not by the sp.a, and the consumer agreements, desired by the sp.a and not by the Open Vld.

Within five minutes, without any discussion, without statements, small or large, without essential comments, without any question, a vote was held on such an important bill. The marionettes of purple work. It takes five minutes to pass a very controversial bill. Simply ashamed.

The government has called for the high urgency of this bill. Colleagues, the first opinion of the Consumer Council dates from 25 September 2003. The second opinion of the Consumer Council dates from 9 December 2005. The State Council’s opinion dates from 20 April 2006. That is about a year ago. High urgency is therefore not at all concerned here.

What is it about? This bill sets the framework for collective consumer agreements concluded within the Consumer Council. The agreement can cover everything that has to do with consumer protection and determines everything itself. Negotiation and conclusion takes place within the Consumer Council at the request of a member or at the request of the Government. If it is a sector that is not represented, it is invited. Fortunately, unanimity within the Council is required, both on the agreement and on the opening of negotiations. The quorum of presence should be established in a domestic regulation. The agreement should be consulted by the Committee on Illegal Clauses. The Consumer Agreement is delivered by the Minister to the Government, after which it is published in the Belgian Staatsblatt, unless an objection of one member of the Government. In this case, it will be discussed in the Council of Ministers.

If it is not ratified by the Council of Ministers, it expires. The signatories and members monitor compliance. Non-compliance is considered to be an act contrary to fair practices. The King may, upon unanimous opinion of the Council, impose the application of a consumer agreement.

At first glance, this seems to be a good idea. However, the opinions of the Consumer Council, the State Council and the Committee on Illegal Claims are very divided, not to say very negative on some points. Therefore, it is not a matter of detailed criticism, but of fundamental objections, which affect the essence of the present draft, which was approved within five minutes.

Let us look at what the Commission on Illegal Conditions has stated on this subject in its opinion. The committee does not judge on the appropriateness of the proposed measure, but only on the legal advisory function, the legal arguments. She points out that the proposed procedure of generally binding declaration and of regulation by royal decree of general contractual terms on which a consumer agreement has been established is contrary to some basic rules of the Belgian legal system, namely the principle of contractual freedom, Article 1134 of the Civil Code. The conclusion of a collective consumer agreement, which is generally binding, is contrary to one of the basic rules of the Belgian legal order.

The committee makes the legal statement as follows – I quote –: “Contracts extend the parties to law and can in principle only be deviated from this by law. This principle was expressly reminded by the State Council following the destruction, in the past, of certain provisions of the professional deontology of certain professions. The committee notes that this draft goes far beyond professional ethics and therefore raises more questions. The proposed method of generally binding declaration is, in the opinion of the committee” – which consists of legal experts – “not in accordance with some basic principles of the Belgian legal order, namely the freedom of contract and the relativity of the agreements concluded.”

The committee continues: "In no case does the provision that the non-compliance or inclusion of a clause agreed in a consumer agreement is considered an act contrary to fairness meet this condition."

The Minister has not listened in the committee and she will not listen now, Mr. Tant. When I disturb her in her conversation, it’s just that.

I continue with my quote: "The possibility of confirmation by the King also contains insufficient guarantees in this regard. According to the committee, the legal obligation of sellers who are not members of a professional organization is simply kaduuk. The principle is therefore contrary to the principle of equality.

Third, as regards the proposed decision-making on consumer agreements, the committee then regrets that negotiating the legitimacy or non-legitimacy of certain conditions would be part of a broader compromise on sales promotion techniques in the broad sense, hindering an objective judgment on the legitimacy of the clauses.”

In addition, the Commission also points out the danger that sectoral agreements or consumer agreements would not be able to pass the test with the Coordinated Act of 1 July 1999 on the Protection of Economic Competition and the European Cartel Law, and the rules on free movement, on the one hand.

It is therefore a number of relevant legal observations, not made by me, but by legal persons, which are very fundamental. The proposed method of universal binding declaration is, in the opinion of the committee, not in accordance with some basic principles of the Belgian legal order, namely the freedom of contract and the relativity of the agreements concluded.

In addition, there are questions regarding enforceability in general, as well as non-affiliated professional federations. According to the Commission, the preconceived procedure for the general binding declaration of consumer agreements is therefore unconstitutional. Business organisations shall not have the authority to conclude, on behalf of the undertakings which are members of them, agreements governing the contractual relations of their members with customer consumers and which bind these members, without the individual consent of the members. The fact that the consumer agreement is ratified by the government does not diminish the unconstitutionality.

The second opinion of the State Council is also negative. I will summarize the most important elements in brief. “In the first instance, in the light of the legal force that the draft attributes to consumer agreements, it raises essential questions concerning the representativity of the organisations acting within the Consumer Council when signing such consumer agreements. In this context, it can be questioned whether the introduction of the possibility of concluding consumer agreements within the Consumer Council can always be reconciled with the mandate of the individual associations and bodies that make up the Council.”

The second argument of the State Council is as follows. If the proposed agreement relates to a sector that is not represented in the Consumer Council by the companies of that sector or invited by their representatives, the agreement cannot be concluded without their approval.

This scheme, which aims to address a possible lack of representativity, is, however, in many respects underdeveloped. There is a lack of definition of the concept of sectors. Furthermore, there is no clarity regarding the selection of the companies from a particular sector to be involved in the negotiations on a consumer agreement.”

So I come to the third argument of the State Council. “The legal force and the place in the norm hierarchy of consumer agreements are not explicitly outlined in the draft regulation. In so far as the consumer agreement as a contractual instrument binds not only the signatories but also the persons whose interests they represent, the proposed arrangement deviates from the principle of relativity of the agreement.

Fourth, the draft is at least ambiguous as regards the legal force of consumer agreements. Furthermore, it does not clarify the legal effects of the declaration of binding effect and the place of the declared binding consumer agreement in the norm hierarchy, in particular with regard to other royal decrees adopted in implementation of the Act on Commercial Practices.” The State Council decides – I quote: “From the foregoing it appears that the draft is due to a thorough revision.”

The third body that gives advice is the Consumer Council. In this we see a contradiction. The consumer organisations agree with the chosen rearrangement as the draft, in their opinion, provides a concrete fulfillment of the concept of co-regulation, including essential matters such as application, control and sanction. That seems clear to me.

On the other hand, there is harsh criticism from the representatives of production, distribution, middle class and agriculture. According to these representatives, there is nothing within the current legal framework that could prevent business groups or companies and consumer organisations from concluding agreements, formulating recommendations or developing codes on a voluntary basis without having to follow a strict and compulsory guideline. This is already happening in practice.

They therefore argue that the legal arsenal on consumer policy is already complex and compelling enough for ⁇ . It is important to avoid over-regulation because it would seriously compromise the competitiveness of Belgian companies. This is stated in the advice. This is, of course, true, especially given the legal criticisms that have already been delivered. These representatives, by the way, consider that there is not much room left for a solid form of regulation. Member States will be given less room of manoeuvre as the European legislature seeks greater harmonisation.

They therefore question whether there is no conflict with the directive. According to them, this should be thoroughly investigated, which has not happened.

Finally, there is still the recurring problem of the representativity of consumer organisations, which imposes a heavy mortgage on the viability of the system proposed in the draft law. The system is based on an effective representation of professional and consumer organisations.

The aforementioned problem, in which one can settle, as long as the Consumer Council remains an advisory body, constitutes an obstacle here. After all, in the system proposed in the draft law, there is not only advice, but also the establishment of real, compulsory, legal standards.

Decision: there are large, legal doubts about the essence of the draft presented, about the relationship with other legal norms and about the compulsory nature. The term “unfounded legality” is even taken into the mouth by specialists. In addition, there is a lot of resistance from representatives of production, distribution, middle class and agriculture. The question can and should be asked whether the system will be able to work in practice. How can enforceable consumer agreements be concluded when half of the body that must conclude the agreements is opposed to the system?

It seems to me, therefore, to be primarily a symbolic file, which encounters major legal and practical objections.

Meanwhile, the law was approved in the committee. The Minister has already received the answers from above and will read them later.

The VBO, which was present at the session, ⁇ in its information sheet of 22 March 2007: “The Chamber Committee for Business passed a bill on consumer agreements last week. The draft law aims to create a legal framework ...”

“The legality of the planned system is heavily disputed by the State Council and by the experts of the Commission on Illegal Conditions. Despite the urgent request of the VBO to hold hearings, the Chamber Committee for Business, without the slightest, substantive debate, approved the bill of Minister Freya Van den Bossche.

Colleagues, the political deal – shopping Sundays versus consumer agreements – that was therefore concluded within the government, is twice as detrimental to the self-employed.

First, the extension of shopping Sundays does not affect the self-employed. Socialists know this very well. The self-employed are not a demanding party. The design charges the self-employed when they want to keep open on Sundays. The cost of shopping on Sundays is ⁇ high.

Second, consumer agreements constitute a new barrier and over-regulation, which seriously undermine the competitiveness of those same undertakings.

Twice, the parties that are so-called for entrepreneurship leave the companies in the cold. The VLD always goes under the blade, when it comes to the hard-working self-employed. Good luck to those who are still here.

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We think this is a good thing because, in the last 20 or 30 years, consumer law has undergone a profound evolution. Evidence is that in many sectors, the legislator has clarified the relationship between sellers and consumers through general or special rules.

In recent years, several agreements have been concluded between trade and consumer representatives, in particular in the areas of advertising, financial services, telephony or electricity. Overall, these agreements have been fruitful and have helped solve many problems.

In addition, these consumer agreements have a number of advantages. In some cases, they are better than a simple regulation. They are more flexible to change. This is important when you know how quickly certain business practices vary. They shall ensure the direct involvement of stakeholders from the stage of development of the standard. They may even participate in clearing the courts and courts from a number of complaints that would have been filed if such an agreement had not been concluded as soon as possible.

That is why the Reform Movement and myself are in favor of this type of agreement and will therefore vote in favor of the bill.

Nevertheless, I still ask myself questions that I find important, in particular as regards the place of these agreements in the hierarchy of norms. In fact, they will bind not only their signatories but also third parties. Can they be mentioned by third parties? I also wonder about the possibility of concluding these agreements in view of the statutory mission of the bodies that make up the Consumer Council. Nor should over-regulation endanger the competitiveness of our ⁇ in a sustainable way, especially as Europe increasingly tends toward a harmonisation of consumer law.

In any case, I remain convinced that consumer agreements can best solve certain problems. I hope that the industry will not hesitate to inform us of any problems it may encounter so that we can carry out an evaluation of the law, if necessary.

I do not understand the great commotion over the lack of debate in the committee. There was a possibility for debate. There was simply a decision to conduct the debate in the plenary session rather than in the committee. That is the choice of each member of the commission, of course, it should not be a complaint to the applicant of the bill.

It is a design that I think allows consumer organisations and also ⁇ to make agreements. It provides the possibility, we do not obligate anyone to anything. There is also a need for double unanimity. First, there must be unanimity to start: everyone must agree to start negotiations on something, and second, there must be unanimity on the eventually obtained agreement, on the content. If there is no unanimity in either area, there will also be no collective consumer agreement.

In short, everything is done in consultation, which is within the tradition of consultation, which characterizes Belgium, not only in terms of the employment relationship, but also in terms of the consumer relationship. The dialogue has been in the Consumer Council for years. We consolidate and officialize existing practices and provide them with a legal framework.

Apparently, there are now questions about the representativity of the organ, which has been functioning properly for 30 years and which has been composed paritary. It is not randomly composed. For example, members of the Consumer Council also have the right to initiate strike lawsuits. It is not a question of which organization.

Over the course of those 30 years, members have also been exchanged, based on social evolutions. Nothing says that this cannot and will not happen in the future. If anyone – who can also be a parliamentary, a majority or an opposition, it does not matter to me – makes a constructive proposal to improve the representativity of the Consumer Council – which I myself, by the way, do not doubt – I am prepared to examine that proposal. I have no a-priority in this area. Only it is quite crazy that an organ that has been making agreements for years in many domains and in many ways, would suddenly, so to speak, no longer be representative. I would like to challenge that.

Regarding the legal force of consumer agreements, they must of course respect all legal rules and standards. We all know the legal hierarchy. It simply means that we make the agreement known to their members by the professional and consumer organisations. They have the duty to inform, they must also recommend their members to comply with the approved rules, but they are not responsible for any non-compliance of those rules by their members. That is the responsibility of the member itself. It is also the person or company that commits the infringement that will be addressed.

How do we do that? Simply stating that non-compliance with a consumer agreement will be considered as an unfair trade practice. Therefore, the publicity rules are also important, including the publication in the Belgian Staatsblad.

In addition, it is a principle that has been applied for a long time to ensure that voluntary agreements are respected. It is so that the General Directorate of Control and Mediation of the FOD Economy controls and acts on the basis of unfair trade practices. I think of the recommendation on advertising around children’s parties, the agreement on the liberalized energy market or rules on marketing for young people. Many agreements are now concluded on a voluntary basis, unanimously, between organisations, usually government and consumer organisations, on the one hand, and suppliers and producers, on the other. It seems to me logical to ensure that competition is fair in this country. When an agreement is made which is reasonably assumed that the overwhelming majority—almost everyone within that business community—will respect it, one should of course not give one or a few companies a chance to say that they are not bound by such an agreement. This is unfair competition. Even as a consumer minister, I am sensitive to the fair functioning of the market, between companies themselves: please apply the same rules for each company. This is transparent and fair to the consumer. One should not punish a company that complies with fair trade practices and agreements made within voluntary frameworks, however, because there may be some who would rather not be bound by this. That does not go. Fair competition is essential for the functioning of the free market, both for the benefit of those companies and for the benefit of consumers.

What is the scope of such a KB, which declares the Consumer Agreement generally binding? It has the same capacity as a KB. A KB is a KB and the consumer agreement therefore receives the binding character that is inherent in a KB. It is also not new that the legislature in the field of consumer protection, agreements or codes imposes through a KB. In this regard, I refer to the Act on Commercial Practices, which provides for a committee for environmental labelling and environmental advertising, with the task of drawing up the environmental code. This environmental code can be imposed via a KB.

I give a second example. The Electronic Communications Act provides that an ethical committee is authorized to draw up an ethical code. This code can also be imposed via a KB. This code will therefore really regulate the most essential relationships between operators and consumers.

I give a third example. The law of 17 November 2006 amending the law on the protection of the health of consumers, provides that the King can approve the agreements concluded – voluntarily thus – between trade unions and at least two consumer associations, through that KB. In other words, the principle is not new at all. It already exists and is being widely applied, with success.

The design provides for two basic conditions and guarantees. The scope of the Consumer Agreement must be national – which I think is logical – and a unanimous opinion from the Consumer Council is needed. If one member does not agree, then it does not work.

The consumer agreement, reasonably, which is declared generally binding by royal decree, will have the scope of a royal decree.

In other words, the draft aims only to create a general framework within which agreements are concluded. It is based on the full freedom of the parties to negotiate, to conclude an agreement, and it contains essential principles, including the principle of unanimity.

You also know that there must be a household regulation, which must be approved through a decision consulted in the Council of Ministers. In this respect, we also take our responsibility.

Which topics can it be about? Well, consumer agreements can by definition cover any topic that governs the relationship between sellers and consumers, including general terms of sale. Therefore, it is perfectly possible that an agreement interferes with contractual relationships. This is already the case in the agreement with the energy sector. The agreement with Assuralia concerning the insurance has also shown that this has repercussions on the contractual terms. There is never retroactivity. It is always assumed that by date x contracts must be adjusted, as agreed in such an agreement, which is converted into a royal decree.

Contractors have time to adjust contracts. This has always happened in the past. There have never been problems with this. All agreements that have been voluntarily concluded so far have been followed in large numbers. The administration has always acted correctly with respect to those who do not respect to ensure fair competition and to guarantee consumer rights.

There has never been any problem. No one has ever commented on the representativity of the organisations that conduct the negotiations, but on the contrary.

Moreover, it is perfectly compatible with the Royal Decree governing the establishment of the Consumer Council, which literally states that in addition to its task of issuing opinions, it is also the excellent place to – I quote – “enable thoughts and ⁇ a consultation between the representatives of the consumers and of the business.”

I may also mention that there is indeed a divided opinion from the Commission on Illegal Terms. It should be noted that consumer organisations do not even agree with the fact that an opinion is issued, let alone agree with its content. This may indeed be professional organizations versus consumers. It is therefore, let’s be honest, primarily a measure to protect the consumer. Consumer organisations see a lot of grit in this. Professional organizations are a little scared. I think that fear is unfounded, based on previously concluded agreements, and also based on the fact that that unanimity must be there, which also has an impact on the negotiation of the contract terms.

It is still better, both for the consumer organisations, and – in particular and much more – for the companies, that they are considered able to make agreements among themselves, without the need for the government to intervene again and again, to play the arbitrator and to settle it all on their behalf and in their place. I think that the government must regulate what can not be regulated by the business world and the consumer organisations among themselves, but that they should also be considered mature enough to be able to conclude agreements between them, which then logically become enforceable, on the one hand because this is important for consumers and on the other hand because we stand for fair competition in the free market.

Mr. Speaker, the Minister has spoken here longer than in the committee and simply does not answer the questions I have asked.

The fact that no debate could take place in the committee has to do with the fact that the hearings were rejected. When a text is confronted with such comments, namely unconstitutional, from the Commission on Illegal Conditions, the Council of Consumption and the Council of State, which raise very serious legal concerns and say that this work is unrelated, then we ask for a debate, in order to inform us about those matters.

No one went into it after the minister said it was unnecessary. So you have said things that are not questioned at all, Mrs. Minister. It is clear that fair competition is the essence of the free market. This does nothing in this regard. My problem is that there were no hearings about this so controversial bill and that there was simply no discussion in the Chamber Committee, because there were no hearings and because this is linked to shopping Sundays. These deals are unacceptable to me.

You say no, but why did you call the emergency? The draft has been pending for four years and suddenly it needs to be arranged, just after an agreement has been reached in the Council of Ministers on the shopping Sundays. You have gone under the trail there. Everything you said does not do anything about it.

We will abstain because we disagree with the way we work in the committee on this particular point. It has never happened that we have been given such a controversial design and that no one should come to be heard. We cannot speak about this and will abstain.