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The nature of the B2B protection regime : is there any escape from it?
Take-away
The short answer is no, considering the legal nature of the B2B protection regime as “politiewet”/“loi de police”.
However, according to the legislator’s point of view, the B2B protection regime operates as a general regime (lex generalis), giving way to a certain extent if a lex specialis exists.
“Unfair clause / unfair contractual terms”: what does it mean? What is the sanction?
Take-away
Four provisions shape the concept of unfair clauses.
First, Article VI.91/2 CEL enshrines a general transparency requirement applicable to all contractual terms (be it essential or not). Contractual terms need to be drafted in plain and intelligible language.
Secondly, according to Article VI.91/3 CEL, a clause is unfair or abusive if it creates a significant imbalance between the rights and obligations of the parties. It must be noted that Article VI.91/3 CEL only targets clauses / contractual terms that are not essential, i.e. not relating to the definition of the main subject matter of the contract nor to the adequacy of the price or remuneration against the services or goods supplied in exchange.
Thirdly, Article VI.91/4 CEL contains a black list of clauses / contractual terms regarded as always unfair.
Fourthly, Article VI.91/5 CEL contains a grey list of clauses / contractual terms presumed to be unfair.
The above rules are to be combined in a certain logical order : first, check the black and the grey lists provisions, and secondly – as the case may be – apply the unfairness test which can in turn be triggered by a non-compliance with the transparency requirement.
According to article VI.91/6 CEL, the unfair clause / contractual term is prohibited and void. The avoided clause / contractual term is retrospectively invalid as from the beginning. The contract may remain binding for the parties if it can exist without the avoided unfair clause / contractual term.
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