Fair trading practices and fair competition
1. The regulations on fair trade practices and fair competition were until recently included in the Act of 6 April 2010 on market practices and consumer protection. In the meantime, however, these have been transferred to the Code of Economic Law through the implementation of the Act of 21 December 2013 on the insertion of Book VI “Market practices and consumer protection” into the Code of Economic Law.
2. Companies, SMEs, merchants, associations and foundations and even the liberal professions must comply with the regulations regarding fair trade practices and fair competition. If they do not do this, they can incur sanctions, both on the basis of national legislation and on the basis of European legislation, whereby cases can even be brought before the European Commission.
3. For example, companies suffering from unfair competition can bring an injunction action with the president of the commercial court seeking the cessation of the act that infringes one or more stipulations on fair business practices.[1]
When a company becomes aware of a non-compete clause of a particular person and it recruits it, it is committing an error, namely third party complicity in breach of contract. He may even be confronted with a claim for injunction with periodic penalty payments.
4. In the first place, anyone selling goods or services must provide the consumer with sufficiently correct information. Furthermore, one should refrain from unfair commercial practices. A commercial practice is unfair:
if it is misleading (Code economic law Book VI Articles 97-98 and 99);
if it is aggressive (Code economic law Book VI article 99).
eg. Contracting with a competitor's customers who actively use that competitor, when it was known or should have been known that that information was obtained unlawfully, may lead to an injunction for unlawful acquisition for a certain period of time.[2]
5. The Economic Law Code contains a black list of practices for certain unfair commercial practices, which are deemed to be unfair in all circumstances (Articles 100 and 103), as an example here:
- claim that a company, including its business practices, or a product has been recommended, recognised, approved or authorized by a public or private institution when it is not, or make such a claim without meeting the requisite of the recommendation, approval or admission, is met;
- offer products for sale at a stated price without the company indicating that there is a reasonable suspicion that it cannot supply these products or equivalent products at that price or have them supplied by another company during a period and in quantities which, taking into account with the product, the extent of advertising for the product and the price offered, are reasonable.[3]
- slavishly copying a competitor's website (texts, layout, division of headings) and causing confusion.[4]
6. In addition, action can also be taken when a public company carries out commercial activities and receives grants.
If you would like more information about economic law, be sure to read the following articles: Trade name protection
[1] Court of Appeal Antwerp,1.6.2017, Market practices 2017, pag.358
[2] Court of Appeal Antwerp, 22.6.2017, Market practices 201è, pag 376 (here a ban for three years)
[3] French Speaking Court of First Instance Brussels, 8.5.2018, construction law magazine 4/2019, pag.377
[4] chairman of the commercial court of Ghent, Market practices 3.5.2017, 2017, pag.426