In our previous newsletters, we pointed out that since the decision of the European Court of Justice of 29 April 2009 cancelling the ban on joint offers in the Belgian Market Practices Law, the same logic could apply to several other provisions in the Market Practices Law.
With regard to the sales and blackout periods, the Court of Justice ruled that it was up to the national courts to decide whether or not the rules regarding those periods aim at protecting consumers. If the rules on sales and blackout periods aim at protecting another legitimate interest besides protecting consumers, then they do not fall within the scope of the Commercial Practices Directive N° 2005/29. On 2 November 2012, the Belgian High Court ruled that the rules on blackout and sales periods of the old Commercial Practices Law of 14 July 1991 fell within the scope of the Directive and, as a result, those strict rules could no longer be applied by the Belgian courts.
Because the new Market Practices Law of 6 April 2010 contains very similar rules regarding the sales and blackout periods, those rules are also not compliant with EU law and should therefore not be applied by the Belgian courts.
To avoid the situation whereby the sales and blackout periods would no longer apply, the Belgian government decided on 14 March 2013 to amend the current Law of 6 April 2010. The amendment will soon be submitted to the Parliament for approval.
Under the current rules, the summer and winter sales can only start on 3 January and 1 July, and during the preceding period of three weeks, the blackout period, all announcements of price reductions are prohibited. The Government now proposes to amend the blackout periods, which would run from 3 (instead of 6) December until 3 January and from 1 (instead of 6) June until 1 July of each year.
By clearly explaining in the new proposal that the amended blackout period merely aims at securing loyal competition and protecting smaller retailers, and not the consumers, the legislature hopes that the new rules will not fall within the scope of the Commercial Practices Directive N° 2005/29 and will therefore not be subject to a new cancellation action before the European Court of Justice. It remains unclear, however, whether the Belgian courts will accept this cosmetic operation and rule that the new rules on sales and blackout periods do not have to comply with EU law.