The Belgian blackout period, during which no price reduction can be announced, has in the past led to several problems. Several fashion retailers (such as ZEB) have decided not to comply with the blackout period at all, or have found more or less creative ways to avoid the restriction (Inno sends out individual letters to its customers offering them reductions during the blackout period, claiming that this is not an “announcement” of a price reduction during the blackout period).
The European Directive 2005/29 on Market Practices aims at harmonising market practice restrictions and national consumer protection by generally prohibiting misleading and aggressive practices and by blacklisting several specific practices. Since the decision of the Court of Justice dated 23 April 2009 regarding joint offers, it has become clear that “Market Practices” may not be prohibited by national laws if they are not prohibited by the Directive. “Market Practices” are defined as any practices regarding the promotion of products or services to consumers.
There was an ongoing discussion in Belgian case law about whether the rules on blackout periods (sperperiodes/périodes d’attente) fall within the scope of “Market Practices” or not. Both the Commercial Court of Dendermonde (in the ZEB case) and the Belgian High Court (in the Inno case) sought guidance from the European Court of Justice. The European Court of Justice redirected the question back to the Belgian courts. It was, according to the Court of Justice, up to them to decide whether the Belgian blackout period aimed at protecting consumers or not. If it did, then the rules on blackout periods would infringe the European Market Practices Directive 2005/29.
The Commercial Court of Dendermonde had already stated that this was the case and therefore did not condemn ZEB for announcing price reductions during the blackout periods.
The Belgian High Court, in the decision of 2 November 2012 (in the Inno case), which was published on 21 November, also ruled that the Belgian provisions on sales periods and blackout periods not only aim at protecting competing undertakings but also aim at protecting consumers. They are therefore rules on “Market Practices” that fall within the scope of the European Directive 2005/29. The High Court therefore had to conclude that Inno could announce price reductions (so the question of whether individual letters are announcements of price reductions is redundant).
As a consequence, the Belgian legislation on sales periods and blackout periods should be declared illegal because it infringes the European Directive. Announcing price reductions during the blackout periods (from 6 December until 3 January and from 6 June until 1 July) is no longer illegal as long as these announcements are not misleading or aggressive. Undertakings can also start their sales earlier than 3 January or 1 July.