The Belgian Civil Code (hereafter “BCC”) provides the general principles of contract law, whilethe Code of Economic Law (CEL) provides further principles in respect of commercial cooperation contracts generally (such as precontractual information obligations and the B2B act [cf. infra]) and more specifically for certain types of contracts (such as (exclusive) distributorship and commercial agency) and in specific sectors.
Over the last few years, the BCC has been (and is currently still being) thoroughly revised. As of November 1, 2020, Book 8 BCC, which introduces new rules on evidence, entered into force. Further, the new Book 5 of the BCC entered into force on January 1, 2023 and contains legal provisions on general Belgian contract law. This book reflects the legislator’s aim to increase legal certainty by codifying and adding new important principles, such as hardship, anticipatory breach, unfair clauses and a so-called “knock-out rule” to deal with conflicting general conditions and contract terms.
Other books of the BCC (such as non-contractual liability, statutes of limitation, special agreements and securities) are also under review but have not yet entered into force. In respect of business-to-consumer (B2C) agreements, Book VI "Market Practices and Consumer Protection" CEL should be taken into consideration, and in respect of E-Commerce, Book XII "Law of the Electronic Economy" CEL shall apply.
In addition, in respect of business-to-business (B2B) agreements, the B2B act of April 4, 2019 amending Book VI CEL established 3 sets of rules in respect of:
1. misleading and aggressive market practices in business-to-business relations
2. the prohibition of abuse of economic dependence and
3. unfair terms.
The first set of rules is included in Book VI “Market Practices and Consumer Protection” CEL and entered into force on September 1, 2019. The second set of rules is included in Book IV “Protection of competition” of the Belgian Code of Economic Law and entered into force on June 1, 2020. The third set of rules, which determines the circumstances under which a term in business-to-business contracts is considered to be unlawful, is also included in Book VI “Market Practices and Consumer Protection” and entered into force on December 1, 2020. In this regard, Articles VI.91/4 and VI.91/5 CEL respectively introduce a black list of terms which are irrefutably presumed to be unlawful and a grey list of terms of which the presumption of unlawfulness may be rebutted. Asides these listed terms, Article VI.91/3 CEL provides for a general prohibition of any term in business-to-business contracts concluded between undertakings which creates an apparent imbalance between the rights and obligations of the parties. As this legislation is mandatory nature, contractual terms considered to be unlawful will be null and void.