Proposition 54K1451

Projet de loi modifiant le Code de droit économique en ce qui concerne les abus de dépendance économique, les clauses abusives et les pratiques du marché déloyales entre entreprises.

General information ¶

Authors

N-VA Rita Gantois, Werner Janssen, Johan Klaps, Bert Wollants

Submission date

Nov. 13, 2015

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

competition restriction on competition competition law commercial law dominant position company law free competition freedom of trade

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP ∉ Open Vld N-VA MR PVDA | PTB PP VB

Contact form ¶

Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.

Discussion ¶

March 14, 2019 | Plenary session (Chamber of representatives)

Full source

The rapporteurs are Ms Leen Dierick and Mr Benoît Friart. I suppose that they refer to the written report.

Mr. Speaker, dear colleagues, the N-VA story on the protection of traders dates back to 2014. Our first concern was actually the legal position of the farmer. All too often, the farmer was faced with unfair trade practices, practices that went beyond fair competition.

Through the chain consultation, they did what they could, but that was not enough. A real public stick behind the door was needed. We found that stick behind the door in competition law. Though defined at the European level, it appeared to contain a gap in the sense that abuse of an absolute dominant position could be punished, but abuse of a relative dominant position could not.

European law allowed Member States to incorporate it into their own legal systems. A statement from the European Commission confirmed this. That was the solution that the N-VA was looking for. She offered a sticks at the door, but not the necessary flexibility inherent in our freedom of contract, which has given great wealth to the region. Furthermore, the scheme would apply to all economic activities and not only to activities in the agro-food chain. Abuse is everywhere. This law will be more broadly applicable.

The great advantage of competition law was that it could not only draw experience from the German example, where it has existed for fifty years, but that the supervision of the rules rests with an independent supervisory authority, namely the Competition Authority. This would potentially make political-motivated and ministerial-initiated lawsuits impossible. This could damage the investment climate in our country.

We have worked on this in the committee. The various political groups received opinions on this proposal, and an interesting hearing with experts was organised. They taught us that our proposal could be legalized. We have therefore liked to do so. After all, our motto was slowly to get to a good arrangement, rather than quickly to a bad one, of which, by the way, no one gets better.

That the government-Michel I was working on a bill on B2B protection shortly thereafter, we could only congratulate. This, in fact, meant that the problem had been given a higher political priority and that a better support for a solution would be found.

That brings us to today. The draft law can no longer see the light of life due to the fall of the government, but has its rebirth in the form of a large amendment.

The results showed that the hearings were an interesting nutritional ground. Not only is the abuse of economic dependence sanctioned, but it also clarifies which terms and practices in a contractual relationship can really not be covered and should be sanctioned by public authorities if necessary. In this regard, the public authority should not only be understood as the Competition Authority or the Economic Inspection; it can also be a judge. The proposed provisions are of public order. No one can deviate from it. The judge must appeal them on its own. Through the work of the government-Michel I, he will be able to do so when the problem reaches him through a collective claim. This was also enabled by the government with the N-VA.

Colleagues, you may wonder whether the present bill is perfect. It would be naive to answer this question affirmatively. No arrangement will ever be perfect; abuses will always occur, just as rules will always be applied.

The matter will need to be carefully followed. It is therefore good that we have included a mandatory evaluation in the law. It is also appropriate that both the Competition Authority and the FOD Economie issue guidelines that should make it clear to companies and legal practitioners how to apply the new rules in practice.

I will give a few concrete examples.

Incoterms are United Nations rules that regulate the right of transport. Hundreds of companies use it every day. It should therefore be clarified that rules such as lex specialis fall outside the scope of the bill.

Another example is what exactly is meant with a reasonable notice period. Thus, we understand that it must be considered primarily in the light of the nature of the product and the circumstances, in the sense that a bound undertaking should effectively be given the opportunity to withdraw from this agreement.

Of course, jurisprudence will supplement many concepts further, but it is in any case the intention that this law should be invoked as little as possible. Good behavior should always be the norm, even in a commercial practice, where often on the sharp of the cut is negotiated, which in itself is of course not negative. The law and its public application should then be the last resort.

The first step has been taken. We therefore thank all involved for their contribution to this exciting debate and for the creation of this bill and this law.

Mr. Speaker, our group was eager to introduce legislation to better protect self-employed persons and SMEs in business relations and to combat unfair practices and abuse of economic dependence. We specifically targeted small producers in the agri-food sector but also other professions such as garage owners or self-employed workers in the automotive sector, who often face the compressor roll of major brands abroad.

In our mind, such legislation must also indirectly benefit the consumer. That is why we introduced a bill last year aimed at two objectives: on the one hand, allowing the Belgian Competition Authority to act in case of abuse by a company or group of companies of the state of economic dependence of a client or supplier and, on the other hand, allowing companies that are in a state of economic dependence and who are subject to restrictive practices from their business partner to bring a lawsuit before ordinary courts.

Our proposal is inspired by what exists in France and which creates a power for the Minister of Economy to act with cessation against unfair practices.

I would like to point out that a lot of work has been done in the committee. We conducted hearings, we met with organizations and institutions as well as academics. Finally, the consensus text that was adopted fits perfectly with what our group demanded. The text extends the powers of the Belgian Competition Authority when there is obvious abuse on the part of an operator but that operator does not have a dominant position. The text also gives independent ⁇ and small ⁇ rights comparable to those of consumers to better defend themselves against unfair, aggressive or deceptive practices by large companies.

A small drawback: banking and insurance financial services are excluded from the scope of the provisions on unfair clauses. This is a point of attention for us. This needs to be addressed, in particular to better defend independent agents against bank insurers.

In any case, we believe that these measures will bring a blow of oxygen to self-employed individuals and small and medium-sized enterprises who too often suffer from abuse of dominance or unfair practices from their dominant business partner.

That is why we will support this text.

Thro ⁇ this legislature, the Government has given itself as a priority and primary ambition to improve the situation of companies. He has done so through many just, necessary and beneficial socio-economic reforms whose effects bear fruit.

It is in this spirit that we examine this text concerning the abuse of dominant position. The measures introduced by this text will have a positive impact on contractual relations and will enable the following objectives to be achieved: encouraging freedom of enterprise, strengthening the law of competition, restoring the unbalanced power ratio to equal relations, denouncing abuses by certain companies and suppliers, supporting self-employed and SMEs.

One of the main objectives of this document is to protect SMEs. These are often forced to accept contractual terms and conditions due to abuse of position from oligopolistic companies. This contractual imbalance is not without consequences for these SMEs since in the long run and in some cases, it can lead the employer to the loss of his business. From now on, those who continue to use abusive clauses or who become guilty of abusing economic dependence will be punished.

I would also like to remind you that this legislative approach is not proper to our country. Different Member States of the European Union, including Germany, Austria, France and Italy, have also decided to address this problem and to use new legislation to address it.

For my group, improving the protection of ⁇ and especially SMEs is an absolute priority, which is why we support these measures and invite you to vote in favour of this text.

Mr. Speaker, colleagues, we support this proposal because it finally introduces a legal framework for B2B protection. For a number of years, we have been asking for good protection for consumers as well as for ⁇ , especially for smaller ⁇ when they trade with large companies.

The relationship between enterprises is sometimes characterized by an imbalance at the disadvantage of one enterprise, often the small enterprise with much less power than the other. Sometimes it is also difficult to fight against large suppliers, who use or abuse the economic dependence of small self-employed. Especially then, this B2B protection is an important step forward for many small self-employed.

In the proposal, the Belgian Competition Authority is designated to be able to take action against companies that abuse their economic dependence on other companies. The proposal also addresses unbalanced contracts and aggressive and misleading market practices.

The proposal and demand for a good B2B protection has been present since the beginning of this legislature and was also included in the policy letters of Minister Peeters. Minister Peeters has prepared and issued a regulation that has been discussed to the end, both with the sector of the large enterprises and with the sector of the small enterprises.

Now that we have reached the end of the legislature and are in progress, we have taken into account the work that Minister Peeters and his cabinet had done in the form of amendments to the proposal of N-VA. For example, we have worked together on a proposal from N-VA to come to a good workpiece, and we can finally introduce that B2B protection for companies.

We will therefore fully support the proposal.