Belgium B2B Unfair Terms

Belgium B2B Unfair Terms 

Why a specific B2B unfair terms regime?

The B2B unfair terms rules apply to all undertakings and were introduced to address structural market power and the “fear factor” in commercial relationships, where weaker businesses hesitate to challenge imposed terms, something classic civil law and general market practices law often failed to remedy effectively. 

Contractual freedom is preserved by excluding the core subject matter and the equivalence between price and main performance from control, provided these core clauses are clear and understandable.

Financial services and public procurement contracts (and their follow‑on contracts) are currently excluded, but this is contested. The evaluation suggests reconsidering both exclusions to restore a level playing field, especially since financial institutions and public bodies often act as powerful counterparties comparable to private undertakings

B. Transparency rule, general clause, black and grey lists

The legislation is built around 3 pillars:

1. Transparency requirement: All written contractual terms must be drafted in a clear and understandable way.

• It has a procedural dimension: the other party must have a real opportunity to know the terms before signing (in line with the new civil rule on general conditions) 
• A formal dimension: structure, visibility and wording must be clear; hidden information on key elements such as price or duration may breach transparency.   
• A material dimension: a normally informed and reasonably attentive undertaking  must be able to understand the mechanism of the clause and its economic impact. 

2. General clause: Any clause that creates a “manifest imbalance” between the rights and obligations of the parties is unfair and deemed unwritten. The general clause targets legal rather than purely economic imbalance, but doctrine and stakeholders note that in practice the two are closely intertwined.

3. Black and grey lists whereby: 

• The black list contains clauses that are always prohibited (null and void),; and 
• the grey list contains clauses presumed unfair unless the user proves otherwise. 
• foreseeable harm 

C. Interaction with the new Civil Code

Article 5.52 of the (new) Civil Code introduces a general unfair terms rule for all contracts (B2B, B2C and C2C): any non‑negotiable clause creating a manifest imbalance is unfair and deemed unwritten.

This raised the question whether the specific B2B regime should be repealed. The evaluation highlights several reasons to maintain the B2B rules alongside Article 5.52 BW:

• Article 5.52 applies only to non-negotiated terms; the B2B regime is not formally limited to  adhesion clauses, precisely to avoid complex proof discussions on what was or was not negotiated. 
• The B2B regime contains transparency rules and detailed lists with examples; and 
• The B2B framework comes with public enforcement tools (Economic Inspectorate, advisory commissions, collective redress) that go beyond traditional civil law remedies. 
• as many public entities effectively operate as undertakings. 

D. Enforcement

A key challenge is enforcement in the shadow of the fear factor: weaker parties are often afraid to challenge unfair clauses out of fear of retaliation or termination of the commercial relationship.

To counter this, the legal framework offers a mix of tools:

- Individual remedies: unfair terms are “for non‑written” (null), while the rest of the contract continues to bind the parties.

- Injunctions before the enterprise courts, which can also be initiated by the competent ministers, professional organisations or (in some cases) consumer associations.

- Public enforcement by the Economic Inspectorate, including administrative fines. Around a quarter to half of B2B checks in 2022–2023 revealed infringements relating to unfair terms or practices.

- Collective redress: SMEs can participate in collective actions for damages in case of systemic infringements.

E. Main policy recommendations going forward

The FPS Economy evaluation formulates several key recommendations for the unfair terms pillar, including:

1. Maintain the B2B unfair terms regime, with targeted amendments rather than abolition.

2. Clarify and re‑draft several grey‑list items (e.g. tacit renewal and “reasonable notice”, duration and termination clauses; risk‑shifting; exoneration and penalty clauses) to improve legal certainty.

3. Reassess the exclusions for financial services and public procurement, with a view to bringing them (fully or partially) under the regime.

4. Keep and refine the black/grey list approach, and consider further sector‑specific additions where structural imbalances persist.

5. Strengthen guidance and transparency, through:

- official guidelines and “soft law” from the Economic Inspectorate and the advisory commission on unfair terms;

- pedagogical tools (FAQs, model clauses, examples) for SMEs;

- possibly a public (or curated) register highlighting clauses that courts or authorities have considered unfair, with proper contextualisation.

6. Improve protection against retaliation, via stronger anonymity, easier collective actions, and possibly stricter sanctions where commercial reprisals follow legal action.