On 16 September 2016, the Supreme Court held that the
prohibition of sales at a loss as laid down in Article 101, §1
of the now repealed and replaced Law on Market Practices and
Consumer Protection (Wet van 6 april 2010 betreffende
marktpraktijken en consumentenbescherming/Loi du 6 avril 2010
relative aux pratiques du marché et à la protection
du consommateur – the "Law") is incompatible
with Directive 2005/29/EC of 11 May 2005 concerning unfair
business-to-consumer commercial practices (the "Unfair
Commercial Practices Directive") (Supreme Court, 16 September
2016, Euronics Belgium CVBA v. Kamera Express BV and Kamera
Express Belgium BVBA).
Article 101 of the Law provided for a general prohibition of
offers or sales at a loss. Article 101, §1, second
subparagraph of the Law defined a sale at a loss as "any
sale at a price which is not at least equal to the price at which
the undertaking purchased the item or which the undertaking would
have to pay to replenish its stock, after any discounts granted and
In its judgment, the Supreme Court dismissed the appeal against
a judgment of the Ghent Court of Appeal of 16 December 2013 in a
dispute pitting Euronics Belgium against Kamera Express BV and
Kamera Express Belgium BVBA. The Supreme Court thus confirmed a
finding of the Court of Appeal of Ghent that the prohibition of
sales at a loss as laid down in Article 101, §1 of the Law (i)
falls within the scope of the Unfair Commercial Practices Directive
as it seeks to protect not only competing retailers but also the
consumer; (ii) is stricter than the Directive; and (iii) is thus in
breach of Article 4 of the Unfair Commercial Practices Directive
which prohibits EU Member States from adopting stricter rules than
those provided for in the Directive. This is because Article 101,
§1 contains a general and automatic prohibition of practices
involving the offering for sale or selling of goods at a loss. Yet,
it follows from the Unfair Commercial Practices Directive that such
practices can only be prohibited if they are found to be unfair in
the light of the specific factual circumstances of the case.
Before the Supreme Court, Euronics Belgium CVBA claimed that
Article 101, §1 of the Law falls outside the scope of the
Unfair Commercial Practices Directive in that it supposedly seeks
to protect competing retailers only. The Supreme Court dismissed
this claim. Referring to the legislative preparatory works of the
Law, the Supreme Court noted that Article 101, §1 of the Law
pursued a twofold objective, that involves the protection of both
the economic interests of competitors and those of the
This ruling is in line with the order which the Court of Justice
of the European Union (the "ECJ") issued on 7 March 2013
in the same dispute. In response to a question referred to it by
the Ghent Commercial Court, the ECJ held that the Unfair Commercial
Practices Directive precludes a national provision such as Article
101 of the Law "in so far as that provision pursues
objectives relating to consumer protection" (ECJ, 7 March
2013, Case C-343/12, Euronics Belgium CVBA v. Kamera Express BV
and Kamera Express Belgium BVBA – See VBB on Belgian
Business Law, Volume 2013, No. 3, p. 15-16, available at
The Law, including its Article 101, has in the meantime been
repealed and replaced by Book VI of the Code of Economic Law
(Wetboek van Economish Recht/Code de droit
économique – "CEL"). Article VI.116,
§1 CEL, which is the equivalent of the former Article 101,
§1 of the Law, now provides explicitly that the prohibition of
sales at a loss aims to ensure fair market practices
"between companies". Moreover, the legislative
preparatory works of Article VI.116 §1 CEL state expressly
that this provision protects competition, specifically the position
of small retailers vis-à-vis that of large chains (See
VBB on Belgian Business Law, Volume 2013, No. 5, p. 9, available
www.vbb.com). It remains to be seen whether this
legislative approach suffices to exclude the prohibition of sales
at a loss from the scope of the Unfair Commercial Practices
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