17 Feb Rules on unfair terms in B2B contracts finally in force

In April 2019, the Belgian legislator adopted a law dealing with abuses of economic dependence, unfair terms and unfair market practices between companies, directly inspired by the rules on consumer protection. This specific matter was the subject of our newsletter of 20 May 2019. The last part of the law, which was not yet in force regarded unfair terms. Companies must now abide by these rules, as they have been in force since 1 December 2020.

Unfair terms are defined as any term in a contract between companies which “either alone or in combination with one or more other terms, (…) creates a clear imbalance between the rights and obligations of the parties”. Such a clause is considered null and void.

In addition to this general prohibition, the legislator has established two different lists of unfair terms, whose infringement is also punishable by nullity:

– A “black” list containing terms that are prohibited under all circumstances;

– A “grey list” of eight presumed unfair terms, unless proven otherwise.

The law covers all kinds of clauses, either in general terms and conditions or in negotiated contracts (both concluded or extended)

It applies to all enterprises, regardless of their legal form. Rules against unfair terms in B2B contracts only apply to contracts concluded or renewed after 1 December 2020. However, this law does not apply to financial services and public procurement.

It is strongly recommended that model contracts and general terms and conditions be reviewed in the light of this new legislation.

For more information on the subject, please do not hesitate to contact Me Guillaume RUE (guillaume.rue@cairnlegal.be).

Best regards,
The Cairn Legal team.