12th April 2019
Grégory Sorreaux and Catherine Thiry - THALES
Starting from the observation that the current provisions of the Code of Economic Law would not make it possible to ensure an effective level of protection for companies in a position of weakness or even economic dependence on other companies, the Belgian legislator adopted on 21 March 2019 a new law introducing three sets of new rules into the Code aimed at regulating relations between companies (B2B). In the upcoming months, new provisions on abuse of economic dependence, unfair terms and unfair, misleading or aggressive market practices will come into force. In practice, several of these will fundamentally change the legal framework for business relations. This law will be published in the Belgian Official Journal shortly. Grégory Sorreaux and Catherine Thiry from MSI's legal member firm THALES provide further insight on the new legislation.
A. Abuse of economic dependence
Based on the observation of abusive behaviour in unbalanced relations between companies, the Belgian legislator introduced in the Book IV of the Code of Economic Law (dedicated to the protection of competition) the prohibition to abuse a relationship of economic dependence on another company. This regulation is directly inspired by the French model.
1) How is a position of economic dependence defined?
This notion is defined as follows: a position of subordination of one company towards one or more other companies, which is characterised by two criteria, namely: (1) the absence of a reasonably equivalent alternative available within a reasonable time, on reasonable terms or at reasonable cost, (2) which allows the said company to impose services or conditions which could not be obtained under normal market circumstances.
In order to be able to determine this position, the specific factors to the case may be taken into consideration, such as:
The notion of economic dependence is therefore distinct from the notion of dominant position. Likewise, a situation of economic dependence may well exist in the case of a company that is not a SME, even though it is primarily this category of companies that the law seeks to protect, particularly in the food retail sector.
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