Belgium: Major change in the regulation of B2B relations
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 market power of a company;
- the fact that one company holds a significant share of another company's turnover;
- brand awareness, product rarity, consumer purchase loyalty;
- fear of serious economic disadvantages, reprisals or termination of the contractual relationship ("fear factor");
- the regular granting to a company of special conditions which are not granted to other companies in parallel circumstances, such as discounts or special promotions;
- obtaining benefits without compensation or disproportionate benefits;
- obtention of apparent abusive conditions under the threat of a sudden termination of commercial relations:
- subjecting a business partner to penalties for late delivery in the event of force majeure;