Belgium: New Belgian Law Strengthens The Position Of Dependant Enterprises Against Dominant Companies

Last Updated: 28 May 2019
Article by Yolaande Meyvis and Pieter-Jan Aerts

On 21 March, Belgium adopted amendments to the Code on Economic Law, on the abuse of a significant dominant position in the Belgian market.

The aim of this new instrument is to protect companies (e.g. SME's with less negotiating power), against companies with a significant dominant position (e.g. suppliers, clients, etc.). Such a significant dominant position in a market may be evidenced by the ability of a company to impose terms and/or performances on other market players that exceed normal market practice (for examples, see below).

The issue had already been addressed in Book IV of the Belgian Code on Economic Law on competition law, as well as in similar codes in other European countries. The Belgian House of Representatives has now, by amending the Belgian Code on Economic Law:

(i) Clarified and enlarged the definition of abuse of a dominant position in the Belgian market;

(ii) Improved the protection of predominantly small and medium enterprises against enterprises with a significant dominant position; and

(iii) Enlarged the definition of unfair market practices.

Please find below a brief outline of the new general and specific protective measures.

(i) Definition of a dominant position

  The amended legislation prohibits enterprises from exploiting and abusing their dominant market position. A company is dominant if it is able to impose terms and/or performances exceeding normal market practice on other market players because of the absence of reasonable alternatives for such other market players. The latter are in that case considered as "economically dependent" on the dominant market player. The creation of this new criterion of economic dependency makes it easier to find an abuse of a dominant market position, in comparison to the previous law. The legislator has introduced a non-exhaustive list of potential abusive measures:

a. A refusal of sales, purchases, or other conditions of a transaction;

b. Directly or indirectly imposing unequitable prices or conditions;

c. Restricting production, sales or technical development at the expense of consumers;

d. Imposing different conditions on some market players in comparison with other market players for similar performances, affecting each player's ability to compete in the relevant market; or

e. Refusing to enter into agreements unless the business partner agrees to supplementary performances, which, by nature or within the ordinary course of business, do not relate to the object of the main agreement.

(ii) Prohibited provisions in B2B contract drafting

  a. General prohibition on unfair contract clauses

The amended Belgian Code on Economic Law prohibits the use of clauses in B2B agreements creating an apparent imbalance between the rights and obligations of the parties in such agreements (so-called "unfair clauses"). To establish whether a clause is unfair, courts may take into account all circumstances in which the agreement has been concluded (including commercial considerations (quid pro quo), relevant market practices, other clauses related to the transaction, etc.) and the clarity and comprehensibility of the clause.

b. Blacklist and grey list of abusive clauses

Certain clauses will always be regarded as abusive and are blacklisted. Examples are clauses providing the right for one enterprise to unilaterally interpret contract clauses, and clauses imposing that the counterparty waive all rights of recourse in case of a dispute.

Also a grey list has been created, containing clauses that are presumed to be abusive, unless proven otherwise, e.g. a clause allowing the dominant company to unilaterally raise or reduce the price.

(iii) Review of unfair market practices

The prohibition of unfair market practices has also been redefined, amending article VI.104 of the Belgian Code on Economic Law. Those practices include deceptive practices and misleading omissions, as well as aggressive market practices, and other types of infractions that lead to the breach of any provision of this new law.

Penalties in cases of violation of the law

The Belgian Competition Authority (BCA) has the power to fine companies up to 2% of their annual Belgian turnover if they are found to have breached the new provisions on relationships of economic dependence. In addition, the BCA may impose a daily fine of up to 2% of the company's average daily Belgian turnover if it fails to comply with its decision. Although the degree of such fines is not negligible for companies, these are sensibly lower than fines the BCA may impose for general breaches of competition rules. More precisely, for general breaches of competition rules, the BCA has the power to fine companies a maximum cap of 10% of their annual Belgian turnover, as well as a daily fine of 5% of the average daily Belgian turnover for non-compliance.

It is worthy to note that additional proposals of legislation in Belgium are looking to significantly modify the basis for calculation methods of fines from Belgian turnover to consolidated worldwide turnover for companies found to be in breach of competition rules. If adopted, the new fine ceilings will only apply for breaches taking place after the entry into force of the proposed law."

Entry into force

The bulk of the new protective measures will enter into force four months after its publication in the Belgian Gazette, which will presumably take place in May. The most important articles regarding the abuse of a dominant position (i.e. the black and grey lists) will only enter into force on the 19th month after the publication of the law in the Belgian Gazette. The law will only have effect on contracts concluded, modified or amended after its entry into force.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions