- 1 of 47 - BELGIUM Catherine DELFORGE and Ludivine ...

d) If parties can, in principle, limit their contractual rights, it seems more difficult to
admit that they might, by doing so, renounce a right that is considered as “ fundamental ” by
the Belgian Constitution, i.e. the right to associate oneself with someone (article 27) 175 .
Therefore we think that a judge could annul this clause.
Note: The directive 98/27 of May 19th 1998 was transposed into the Belgian law under
the law of May 26th 2002 176 on the intra-community "actions en cessation" regarding the
protection of the consumers’ interests.
The "entities qualified" within the meaning of the article 1 of this Law are those which
are "made up in accordance with the right of a Member State of the European Union, having
a legitimate interest to bring proceedings in suspension of an infringement in order to protect
the collective interests from the consumers, under the terms of the criteria fixed by the law of
this Member State".
According to the Law, in the event of infringement 177 which has its origin in Belgium and
which produces effects in another Member State of the European Union, any qualified entity
of this other Member State can bring proceedings in suspension in front of the President of the
commercial Court of Brussels in order to put an end to or to prohibit the infringement (article
4). Two conditions must however be met:
the interests protected by this qualified entity must be injured by the
infringement;
the entity must be registered on the list of the qualified entities drawn up by the
European Commission and published in the Official Journal of the European
Communities.
The qualified entities of Belgium are associations having as their aim the defence of the
collective interests of consumers, who enjoy civil personality and who are represented in the
Consumers Council or are approved by the Minister (article 5).
The president of the commercial Court of Brussels, ruling according to a procedure "as in
summary procedure" ("emergency" procedure) (article 9) can also order the publication of its
judgement - or summary - via the press, post or any other manner, and this at the expense of
the party at fault.
175
Article 23 of the Constitution : " the Belgians have the right to join; this right can not be subjected to preventive measure ".
176
Mon.b., 10.07.2002.
177
The law specifies the provisions whose are protected. Among those, one finds:
- the law of July 14, 1991 on the practices of the trade and the information and the consumer protection, and its decrees of
execution,
- the law of June 12, 1991 relating to the consumer credit and its decrees of execution,
- the law of 16 February 1994 governing the contract of organization of travels and the contract of intermediary of travel, and
its decrees of execution,
- the law of April 11, 1999 relating to time share contracts and its decrees of execution,
- the law of March 11, 2003 on certain legal aspects of the services of the society of information, like its decrees of execution.
The laws governing the lease are not registered in this list. The consumers's Associations should not thus be able to act as justice in
order to make respect the law. It would be different, however, if the lessor is a professional and that the clause can be declared
"abusive" within the meaning of the law of 14 July 1991 having transposed directive 93/13 (Black List).
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