© Springer-Verlag Berlin Heidelberg 2015
Pierre Kobel, Pranvera Këllezi and Bruce Kilpatrick (eds.)Antitrust in the Groceries Sector & Liability Issues in Relation to Corporate Social ResponsibilityLIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition10.1007/978-3-662-45753-5_23

23. Belgium

Laurie Caucheteux  and Michaëla Roegiers 

Praetica, Brussels, Belgium



Laurie Caucheteux (Corresponding author)


Michaëla Roegiers

The authors want to thank Alex Tallon for his comments on an earlier draft of this paper. The content of this report remains the authors’ sole responsibility.

23.1 Introduction

In Belgium, CSR policies concern different areas of business. Firstly, we will analyse the different laws concerning CSR policies. Then we will examine if Belgian law prevents or sanctions a business that carries out commercial practices that breach a CSR policy voluntarily adopted. Secondly, we will consider whether Belgian laws adequately address commercial practices when a business is breaching its own CSR policy. Finally, we will point out competition aspects of CSR standards and if issues are raised by Belgian competition law when undertakings in a horizontal relationship agree voluntarily to commit to a CSR policy.

23.2 Definition and Context of CSR in Belgium

In Belgium, CSR policies concern different areas of business. At federal level, the Commission of the interdepartmental of sustainable development (hereinafter: CIDD) has adopted an action plan on 21 December 20061 (hereafter “the Action Plan”), which aims at promoting CSR policies and at stimulating companies to integrate those policies in their management.2 This Action Plan is not binding.

This Action Plan defines a CSR as “a continuous improvement process where the undertakings include in a voluntarily way social, environmental and economic considerations in their management.”

Furthermore, we have different laws directly related to CSR policies:

  • The law of 28 April 2003 regarding the additional/complementary pension and its tax system and some advantages in the sector of social security schemes that compel pension funds to take into account social, environmental and ethical considerations in their investment strategy;3

  • The law of 13 January 2006 modifying art. 96, 1° of the Companies Code imposing to include in the management report not only financial devices of performance but also non-financial indices such as environmental and social information;4

  • The law of 27 February 2002, which promotes socially responsible production by creating a social label.5

In addition, some business sectors have created their own code of conduct,6 including CSR policies, thereby auto-regulating themselves. For instance, the association of pharmaceutical companies follows its own code of conduct regarding drug advertising.7 The jury of ethical advertisement, which is the self-regulatory body of Belgian advertising industry, examines the conformity of an advertising message in the media in relation to a code of conduct.8 The industrial food sector9 and the association of cosmetic producers10 have also their own code of conduct.

Some codes of conduct have been negotiated between consumers and professional organisations within the council of consumption.11 These so-called co-regulation codes include the code on ecological advertisement, the charter for the customer, the code of conduct on the advertisement and marketing toward young people for bank services and products.

However, these codes are currently not binding, as they have to be enacted in a royal decree to enter into force.12 For that to happen, the council of consumption would have to unanimously approve the binding force of such a code. Experience showed that it will be difficult to build such a majority inside the council of consumption.

23.3 Relevant Legislation Sanctioning a Business Which Carries Out Commercial Practices in Violation of Its Own CSR

We have to distinguish between the financial compensation remedy provided by Article 1382 of the Civil Code and the law of the 6 April 2010 on market practices and consumer protection, which provides injunctive relief (hereinafter: “LPMC”).

23.3.1 Injunctive Relief

The LPMC draws a difference between the business-to-consumer practices (Arts. 83–94) (transposing the EU unfair commercial practices Directive13) and the unfair practices taking place between undertakings (Arts. 95–99). Consumers’ Protection

The Law

In order to guarantee consumers’ protection, the Directive established a list of commercial practices that are deemed unfair (Annex I of the Directive 2005/29/EC).

This “black list” has been implemented into Belgian law by Article 91 LPMC, which provides that some commercial practices towards the consumer are, under any circumstances, considered as being unfair. These include the following:


claiming to be a signatory to a code of conduct when the trader is not;



displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation;



claiming that a code of conduct has an endorsement from a public or other body which it does not have;



claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.14


Article 91 does not apply to the non-compliance by an undertaking of its own CSR policies.15

However, the violation of CSR policies by an undertaking could be sanctioned by Article 89, 2° LPMC, which provides that “A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:


the commitment is not aspirational but is firm and is capable of being verified and;



the trader indicates in a commercial practice that he is bound by the code.”16


The Applicants

The Minister of Economic Affairs (hereafter “the Minister”) and the General Director of the Federal Public Service of Economic Affairs can obtain an injunctive relief against an undertaking that breaches the provisions of the LPMC pertaining to the protection of consumers, except in cases involving Article 95 LPMC et seq. concerning unfair practices between undertakings (Art. 113, al. 1, 2°, LPMC).17 The Minister does not have to prove any interest in order to obtain an injunctive relief before the Court.

In case of unfair practices in a business-to-consumer relationship, the consumer may apply for injunctive relief against an undertaking (Art. 113, al. 1, 1° LPMC). The consumer must be affected by the unfair practice and must have a direct and personal interest (Arts. 17 and 18 of the Judicial Code). However, it can also be a preventive action.18

A consumers’ association may also apply for injunctive relief against an undertaking (Art. 113, al. 1, 4°, LPMC; Art. 2 RPLPMC19). The consumers’ association needs to have a legal personality and has to be represented in the council of consumption or has to be approved by the Minister for Economic Affairs. The association’s purpose, as reflected in the articles of association, must be devoted to the protection of the interests of consumers. The association would have to prove a collective advantage but not a direct interest such as the one that is provided for the consumer (Art. 113, al. 2 LPMC) (see above). The consumers’ association may not introduce a proceeding in case of an unfair practice between undertakings20 (Art. 113, al. 1, 4° LPMC). Prohibition of Unfair Competition Between Undertakings

The Law

In order to prohibit unfair practices between undertakings, Article 95 LPMC provides: “Is prohibited all act contrary to the unfair competition by which an undertaking shall affect the interest of one or more undertakings.”

The concept of unfair competition practice is not defined by the law. This notion implies a behaviour that breaches a law or that must be considered as being unfair according to the minimum standard of loyalty between undertakings.

In the latter case, a violation by an undertaking could be considered as an unfair practice between undertakings if two conditions are fulfilled:


the behaviour of the undertaking must be unfair taking into account the business sector, the circumstances of the case;



the commercial practices must be considered as being unfair regarding the minimum standard of loyalty between undertakings and the due professional care.21 In this context, the judge may find in the CSR policies the definition of this standard of the prudent and careful professional care.22


In addition, the non-compliance by an undertaking to the business-to-consumer practices under the LPMC may also be in violation of Article 95 LPMC if:


the commercial practice affects not only consumers protection but also one or more undertakings;



the commercial practices is unlawful under the provisions of the LPMC concerning consumer protection (Article 83 et seq.).


In view of the above, the non-compliance by an undertaking with its own code of conduct within the meaning of Article 89, 2° LPMC could be considered as being an unfair practice between undertakings within the meaning of Article 95 LPMC.

Furthermore, non-compliance by an undertaking of a code of conduct endorsed by the council of consumption may be sanctioned under Articles 93 and 94 LPMC.

The Applicants

A competing company may bring a legal action against unfair competition on the basis of Article 95 (Art. 113, al 1, 1° LPMC). The undertaking, just as the consumer, would have to prove an interest according to Articles 17 and 18 of the Judicial Code. A potential breach of Article 95 LPMC might still happen.23 However, an undertaking cannot bring an action ad futurum. 24

When a business faces an unfair practice carried out by another undertaking, a professional group may have an interest to introduce a case of injunctive relief (Article 113, al. 1, 3°, LPMC). This professional group, just like a consumer association, has to prove a collective interest but not a direct interest unlike individual consumers or undertakings (see above). This collective interest has to be integrated in the articles of association.

The suppliers and the purchasers of the goods or services of a business may bring an action against unfair practices on the basis of Article 95 LPMC if they are considered as an undertaking in the sense of Article 2, 1° LPMC, i.e., “a physical person or a legal entity with an economic goal.” As mentioned above, a risk of a violation of Art. 95 LPMC might be sufficient to bring a legal action. The supplier or purchaser may be Belgian or not.25

The Minister can bring a legal action following a complaint from a consumer or at the request of the Public Prosecutor regarding an infringement of the LPMC (Arts 123 et seq. and 133 et seq., LPMC). The Minister has the power to conduct an investigation in order to detect an infringement to the LPMC (Art. 133 LPMC). The Minister may issue a warning so that the undertaking ceases its practices (Art. 123 LPMC). If the undertaking does not comply with the warning, the Minister may transfer the case to the Public Prosecutor.

Usually, the Minister will offer a settlement. If the undertaking accepts this settlement, no action will be introduced by the regulatory authority.

All unfair practices carried out against the consumer are likely to trigger a criminal fine from EUR 250 to EUR 10,000 (Art. 124, 13° LPMC). If an undertaking acts in bad faith, it could be sanctioned by a criminal fine from EUR 500 to EUR 20,000. The concept of bad faith is discussed by the doctrine. According to the jurisprudence, bad faith is proven if the undertaking that has been subject to an injunctive relief order commits an unfair practice in another business sector.26

In addition, non-compliance with an injunctive judgment may be sanctioned by a criminal fine of EUR 1,000 up to EUR 20,000 (Art. 126, 1°, LPMC).

23.3.2 Financial Compensation The Law

The violation of CSR policies by a company could also be sanctioned under civil law by using the standard of the prudent and careful trader in the same circumstances of the case (Art. 1382 Civil Code). An undertaking or a consumer may bring an action for damages when an undertaking breaches its own CSR policies if they can prove the existence of damage and a causal link between the fault and the damage. The judge could find in the CSR policies the definition of the standard of the prudent and careful trader.27 The objective of Art. 1382 is to grant compensation for damages; on the contrary, the main purpose of the LPMC is to put an end to an unfair practice.28 The Applicants

In Belgium, public authorities do not have locus standi to claim damages on the basis of Article 1382 Civil Code.29

A consumer may also bring a legal claim based on Article 1382 Civ. Code. He must prove a fault (violation of the LPMC), a damage, and a causal link. If there is a judgement of injunctive relief on the basis of the law of LPMC, the fault is proved by this judgement.

Few consumers will file suit because of the costs of such a proceeding.

In Belgium, the class action does not yet exist.30 However, the Government has the intention to introduce this type of legal action in our legal system. This type of action could be brought by non-profit organisation and professional associations. There have been several proposals from the Parliament on this subject.31

An undertaking may claim damages on the basis of Article 1382 Civ. Code. It has to prove a fault (violation of the LPMC), a damage and a causal link. If there is a judgement of “stop order” on the basis of the LPMC, the fault is proved by this judgement.

The judge has to evaluate the loss of profits of the undertaking harmed and linked to this fault.32 The good faith of the undertaking is not a criterion to assess the damage. It is often difficult for the undertaking to prove its disgorgement of profits.33

If the judge cannot accurately assess the damage, he will set the compensatory damages ex aequo et bono.

In Belgium, class action does not exist yet.34 But there have been several proposals from the Parliament on this subject (see above). A professional association has, just like a consumers’ association, to prove its own damages and interests. This will rarely be the case (see above).

However, if the association is a professional union in the sense of the provisions of the law of 31 March 1898, it could file suit on behalf of several members harmed by the unfair practice in order to recover the damages.35

Under Article 1382 Civ. Code, the suppliers and purchasers of the company have to prove a fault, a causal link, and a damage. The proof of a damage caused by an undertaking that breaches its own CSR policy is more complicated. In conclusion, the suppliers and purchasers have more chances to bring an action for injunctive relief than to obtain some financial compensation.

23.3.3 Case Law

We will analyse in our case law the power of interpretation of the judge when a business breaches its CSR policy in order to determine how close the connection is between the commercial practice that breaches the CSR policy and goods produced or services supplied by the business.

According to the national case law, in a judgement dated 4 June 2010, the President of the commercial court of Turnhout decided that the placing on the market of a product with a quality mention while the product does not come from that producer is considered as an unfair practice between undertakings. The undertaking had no power to control the product that is sold with a quality label.36 The undertaking claimed to have the quality label but without having obtained a quality label. In that case, the judge had no power of interpretation.

In a judgement dated 19 December 1996, the President of the commercial court decided that in absence of any legal directive, the term “bio” is very general. The use of the term “bio” on a product by an undertaking cannot be considered as constituting unfair practices.37 The judge has first to analyse if a CSR exists and what is the content of it. When there is a general term that has no specific content, it will be difficult for the judge to appreciate if this practice is considered as unfair.

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