New set of unfair B2B contract terms for agreements in the supermarket sector

The Belgian B2B-Law – integrated in the Belgian Code of Economic Law – entered into force on 1 December 2020. This B2B-Law sets out a number of clauses that are considered unfair and invalid in the framework of B2B agreements (agreements between companies).

The B2B-Law contains a ‘black list’ (clauses that are considered unlawful) and a ‘grey list’ (clauses that are presumed unlawful, but for which rebuttal of such presumption is possible). Moreover, any terms of a B2B agreement concluded between parties that create a manifest imbalance between the rights and obligations of the parties, is deemed unlawful (catch-all provision).

Within the framework of this B2B-Law, the legislator may impose additional unfair clauses within specific sectors.

The Royal Decree of 20 June 2024 (the “Decree”) will introduce new unlawful clauses for all types of ‘commercial cooperation agreements’ for the supermarket sector and aims at protecting independent supermarket operators vis-à-vis supermarket chains with considerable bargaining power.

Scope of the Decree

The Decree applies to all commercial cooperation agreements, meaning (mainly) franchising agreements with so-called non-specialized shops that sell primarily food, beverages and tobacco products (i.e., supermarkets and superettes). In practice, the Decree applies to (franchise) agreements between a supermarket chain and its independent operators.

To protect the contractual balance between these parties, the Decree foresees some additional sector specific unfair contract terms.

Pursuant to the ‘black list’, the following clauses will be considered unlawful:

• refusing to compensate the operator or unduly restricting the operator’s right to obtain supplies from third parties if the supermarket chain fails to honour its delivery obligations;
• prohibiting the operator from entering into negotiations to develop a new activity during the notice period or during the term of a non-compete clause;
• forcing the operator to bear more than 50% of the costs of promotions imposed by the supermarket chain;
• conferring exclusive jurisdiction to the court of the registered seat of the supermarket chain and/or to a court in another linguistic region than that of the operator.
  

Pursuant to the ‘grey list’, the following clauses will be presumed to be unlawful (rebuttal remains possible):

• entitling the supermarket chain to acquire the business or the shares of the operator at a manifestly unreasonable fixed price (i.e.: not reflecting the effective market value);
• preventing the operator from terminating the agreement, without paying additional compensation, when it has structurally operated at a loss for more than twelve months;
• allowing the supermarket chain to terminate the agreement with an express termination clause

Entry into force

The Decree will enter into force on 1 January 2025 and will apply to all commercial cooperation agreements in the supermarket sector concluded, renewed or modified as of this date. All other (pre-)existing (franchise) agreements will be granted a transition period until 1 May 2025. By this deadline, all (franchise) agreements currently in force (within the supermarket sector) must comply with the new B2B rules.

Actions to be taken

This new legislation marks a major shift in the way (franchise) agreements in the supermarket sector are drafted. Both operators and supermarket chains will need to take proactive steps to ensure that their agreements comply with these new B2B-rules by the relevant date of entry into force (1 January 2025 or 1 May 2025).

Sanctions of non-compliance may range from the nullity of the affected contractual clause, to cease and desist actions, fines, etc. and can thus have far-reaching consequences.

Please do not hesitate to reach out, should you require any advice or assistance regarding the compliance of your current or future agreements with the Decree.