1. E-COMMERCE IN BELGIUM
THE EUROPEAN LAW BACKGROUND
1. EU DIRECTIVE 2000/31/CE(June 8th
2000) on certain legal aspects
of information societyservices,in particular electronic commerce, in
the Internal Market ('Directive on electronic commerce')
The Electronic Commerce Directive, adopted in 2000, sets up an Internal Market framework
for electronic commerce, which provides legal certainty for business and consumers. It
establishes harmonised rules on issues such as the transparency and information requirements
for online service providers, commercial communications, electronic contracts and limitations
of liability of intermediary service providers.
The proper functioning of the Internal Market in electronic commerce is ensured by the
Internal Market clause, which means that information society services are, in principle,
subject to the law of the Member State in which the service provider is established. In turn,
the Member State in which the information society service is received cannot restrict
incoming services.
In addition, the Directive 2000/31/CE enhances administrative cooperation between the
Member States and the role of self-regulation.
This Directive covers a lot of services included online information services (such as online
newspapers), online selling of products and services (books, financial services and travel
services), and also online advertising. These services include also other services provided free
of charge to the recipient and funded, for example, by advertising or sponsorship.
Each State in the European Union shall ensure that the information society services provided
by a service provider established on its territory comply with the national provisions
applicable in the Member State in question which fall within the coordinated field but at the
same time Member States may not, for reasons falling within the coordinated field, restrict the
freedom to provide information society services from another Member State.
There is a principle, which is a key point for electronic commerce, a principle that exclude
prior authorisation. “Member States shall ensure that the taking up and pursuit of the
activity of an information society service provider may not be made subject to prior
authorisation or any other requirement having equivalent effect.”

2. The Directive also gives some general information that should be provided. In addition to
other information requirements established by Community law, Member States shall ensure
that the service provider shall render easily, directly and permanently accessible to the
recipients of the service and competent authorities, at least the following information:
1. The name of the service provider;
2. The geographic address at which the service provider is established;
3. The details of the service provider, including his electronic mail address, which allow him
to be contacted rapidly and communicated with in a direct and effective manner;
4. Where the service provider is registered in a trade or similar public register, the trade
register in which the service provider is entered and his registration number, or equivalent
means of identification in that register;
5. Where the activity is subject to an authorisation scheme, the particulars of the relevant
supervisory authority;
In addition to other information requirements established by the Directive, Member States
shall ensure, except when otherwise agreed by parties who aren’t consumers, that at least the
following information is given by the service provider clearly, comprehensibly and
unambiguously and prior to the order being placed by the recipient of the service:
1. The different technical steps to follow to conclude the contract;
2. Whether or not the concluded contract will be filed by the service provider and whether it
will be accessible;
3. The technical means for identifying and correcting input errors prior to the placing of the
order;
4. The languages offered for the conclusion of the contract.
In addition, Member States shall also ensure that the service provider is not liable for the
information transmitted, on condition that the provider doesn’t initiate the transmission,
doesn’t select the receiver of the transmission and doesn’t select or modify the information
contained in the transmission when information society service is provided that consists of the
transmission in a communication network of information provided by a recipient of the
service, or the provision of access to a communication network.
The Directive shows also a new system: in case an information society service is provided,
which consists of the transmission in a communication network of information provided by a
recipient of the service, Member States shall ensure that the service provider is not liable
for the automatic, intermediate and temporary storage of that information, performed
for the only purpose of making more efficient the information's onward transmission to other
recipients of the service upon their request. There are some conditions to be respected:
1. The provider does not modify the information;
2. The provider complies with conditions on access to the information;

3. 3. The provider complies with rules regarding the updating of the information, specified in a
manner widely recognised and used by industry;
4. The provider does not interfere with the lawful use of technology, widely recognised and
used by industry, to obtain data on the use of the information; and
5. The provider acts expeditiously to remove or to disable access to the information it has
stored upon obtaining actual knowledge of the fact that the information at the initial source of
the transmission has been removed from the network, or access to it has been disabled, or that
a court or an administrative authority has ordered such removal or disablement.
It should be underlined the fact that this rules should not affect the possibility for a court or
administrative authority, in accordance with Member States' legal systems, of requiring the
service provider to terminate or prevent an infringement.
Focusing on the theme of hosting which means that an information society service is provided
and it consists of the storage of information provided by a recipient of the service, Member
States should ensure that the service provider is not liable for the information stored at the
request of a recipient of the service.
This could be possible under certain conditions:
1. The provider does not have actual knowledge of illegal activity or information and, as
regards claims for damages, is not aware of facts or circumstances from which the illegal
activity or information is apparent;
2. The provider, upon obtaining such knowledge or awareness, acts expeditiously to remove
or to disable access to the information.
However, this article shall not affect the possibility for a court or administrative authority, in
accordance with Member States' legal systems, of requiring the service provider to terminate
or prevent an infringement, neither affect the possibility for Member States of establishing
procedures governing the removal or disabling of access to information.
There is also a non general obligation of monitoring: Member States shall not impose a
general obligation on providers, when the service is provided, to monitor the information
which they transmit or store, not a general obligation actively to seek facts or circumstances
indicating illegal activity.
Another point, which closes the Directive establishes that Member States may set up
obligations for information society service providers promptly to inform the competent public
authorities of alleged illegal activities undertaken or information provided by recipients of
their service or obligations to communicate to the competent authorities, at their request,
information enabling the identification of recipients of their service with whom they have
storage agreements.

4. 2. EU DIRECTIVE 2011/83/UE on consumers right amending Council
Directive 93/13/EEC and Directive 1999/44/EC of the European
Parliament and of the Council and repealing Council Directive
85/577/EEC and Directive 97/7/EC of the European Parliament and
of the Council
A second Directive, numbered 2011/83/UE, which focuses on consumers rights, amends on
previous Council Directive 93/13/EEC and Directive 1999/44/EC.
The purpose of this Directive is, through the achievement of a high level of consumer
protection, to contribute to the proper functioning of the internal market by approximating
certain aspects of Member States’s laws, regulations and administrative provisions concerning
contracts between consumers and traders.
This Directive should be applied, under the conditions and to the extent set out in its
provisions, to contracts concluded between traders and consumers (BtoC – Business to
Consumer). It shall also apply to contracts for the supply of water, gas, electricity and district
heating by public providers to the extent that these commodities are provided on a contractual
basis, but shouldn’t be applied to contracts for social services, including social housing,
childcare and support of families and persons permanently or temporarily in need, including
long-term care.
Some information are required for contracts other than off-premises or distance contracts. In
fact, before the consumer is bound by any contract other than an off-premise or a distance
contract, or any corresponding offer, the trader shall provide the consumer with the
following information in a clear and comprehensible manner, in case the information is not
already apparent from the context:
1. The main characteristics of the goods or services, to the extent appropriate to the medium
and to the goods or services;
2. The identity of the trader, such as his trading name, the geographical address at which he is
established and his telephone number;
3. The total price inclusive of taxes, or where the nature of the goods or services means that
the price cannot reasonably be calculated in advance, the manner in which the price is
calculated, as well as, where applicable, all additional freight, delivery or postal charges or,
where those charges cannot reasonably be calculated in advance, the fact that such additional
charges may be payable;
4. Where applicable, the arrangements for payment, delivery, performance, the time by which
the trader undertakes to deliver the goods or to perform the service, and the trader's complaint
handling policy.
There are also other information requirements for distance and off-premises contracts. For
example, before the consumer is bound by any distance or off-premises contract or any

5. corresponding offer, the trader has to provide the consumer with the following information in
a clear and comprehensible manner:
1. The main characteristics of the goods or services, to the extent appropriate to the medium
and to the goods or services;
2. The identity of the trader, such as his trading name;
3. The geographical address at which the trader is established and the trader's telephone
number, fax number and e-mail address, where available, to enable the consumer to contact
the trader quickly and communicate with him efficiently and, where applicable, the
geographical address and identity of the trader on whose behalf he is acting;
4. If different from the address provided in accordance with the previous point the
geographical address of the place of business of the trader (and where applicable that of the
trader on whose behalf he is acting) where the consumer can address any complaints;
5. The total price inclusive of taxes, or where the nature of the goods or services means that
the price cannot reasonably be calculated in advance, the manner in which the price is
calculated, as well as, where applicable, all additional freight, delivery or postal charges and
any other costs or, where those charges cannot reasonably be calculated in advance, the fact
that such additional charges may be payable. In case of a contract of indeterminate duration or
a contract containing a subscription, the charged at a fixed rate, the total price shall also mean
the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the
manner in which the price is calculated shall be provided;
6. The cost of using the means of distance communication for the conclusion of the contract
where that cost is calculated other than at the basic rate;
7. The arrangements for payment, delivery, performance, the time by which the trader
undertakes to deliver the goods or to perform the services and, where applicable, the trader's
complaint handling policy;
According to Directive 2011/83/UE there are others several formal requirements for distance
contracts. With respect to distance contracts, the information provided should be given or
made available to the consumer in a way appropriate to the means of distance
communication used in plain and intelligible language and, as it is provided on a durable
medium, it shall be legible. In case a distance contracts to be concluded by electronic means
places the consumer under an obligation to make a payment, the trader shall make the
consumer aware in a clear and prominent manner, and directly before the consumer places his
order, of the information provided for. The trader shall ensure that the consumer, when
placing his order, explicitly confirms that the order implies an obligation to pay. If placing an
order entails activating a button or a similar function, the button or similar function shall be
labelled in an easily legible manner only with the words "order with duty of payment" or a

6. corresponding unambiguous formulation indicating that placing the order entails an obligation
to make a payment to the trader.
The directive also explains in case of withdrawal what are the obligations of the trader who
must reimburse all payments received from the consumer, including, if applicable, the costs of
delivery without undue delay and in any event not later than 14 days from the day on
which he is informed of the consumer’s decision to withdraw. The trader shall carry out
the reimbursement using the same means of payment as the consumer used for the initial
transaction, unless the consumer has expressly agreed otherwise and provided that the
consumer does not incur any fees as a result of such reimbursement. Plus, the trader shall not
be required to reimburse the supplementary costs, if the consumer has expressly opted for a
type of delivery other than the least expensive type of standard delivery offered by the trader.
Unless the trader has offered to collect the goods himself, for sales contracts, the trader may
keep the reimbursement until he has received the goods back, or until the consumer has
supplied evidence of having sent back the goods, whichever is the earliest.
On the other hand, the Directive explains in case of withdrawal what are the obligations for
the consumer, who, in case of distance contracts should send back the goods or hand them
over to the trader or to a person authorised by the trader to receive them, without undue delay
and in any event not later than 14 days from the day on which he communicates his decision
to withdraw to the trader, unless the trader has offered to collect the goods himself.
The deadline is met if the goods are sent back by the consumer before the period of 14 days
has expired. The consumer shall only bear the direct cost of returning the goods unless the
trader has agreed to bear them or the trader failed to inform the consumer that the consumer
has to bear them.
In the case of off-premises contracts where the goods have been delivered to the consumer’s
home at the time of the conclusion of the contract, the trader shall at his own expense collect
the goods if, by their nature, those goods cannot be normally returned by post.
In addition, the consumer will be liable for any diminished value of the goods resulting from
the handling other than what is necessary to establish the nature, characteristics and
functioning of the goods. The consumer in any event won’t be liable for diminished value of
the goods where the trader has failed to provide notice of the right of withdrawal.
In case consumers exercise the right of withdrawal after having made a request, the consumer
shall pay to the trader an amount which is in proportion to what has been provided until the
time the consumer has informed the trader of the exercise of the right of withdrawal, in
comparison with the full coverage of the contract. The proportionate amount to be paid by the
consumer to the trader shall be calculated on the basis of the total price agreed in the contract.
If the total price is excessive, the proportionate amount shall be calculated on the basis of the
market value of what has been provided.
The Directive also enucleates some exceptions from the right of withdrawal, in fact
Member States shall not provide for the right of withdrawal in respect of distance and off-

7. premises contracts in case of service’s contracts after the service has been fully performed if
the performance has begun with the consumer's prior express consent, and with the
acknowledgement that he will lose his right of withdrawal once the contract is fully
performed by the trader;
Member States shall not provide for the right of withdrawal for the supply of goods or
services for which the price is dependent on fluctuations in the financial market which cannot
be controlled by the trader and which may occur within the withdrawal period;
Focusing on delivery of goods, unless the parties have agreed otherwise on the time of
delivery, the trader shall deliver the goods by transferring the physical possession or
control of the goods to the consumer without undue delay after, but not later than 30
days from the conclusion of the contract. In case the trader has failed to fulfil his obligation
to deliver the goods at the time agreed upon with the consumer or in time the consumer shall
call upon him to make the delivery within a period appropriate to the circumstances. If the
trader fails to deliver the goods within the appropriate time, the consumer shall be entitled to
terminate the contract.
THE BELGIAN LAW BACKGROUND
“Overview on the main Belgian Laws on E-commerce”
1. La Loi du 11 Mars 2003
a. Introduction
We define the law of 11 March 2003 on certain legal aspects of information’s service society
as the "electronic commerce law", like the Directive of June 8, 2000 it transposes. It should
not be forgotten this law goes far beyond the boundaries of e-commerce in order to be applied
to all of the information society services. It should be noticed that the Directive was
transposed into Belgian law by two different laws: the law of 11 March 2003 on certain legal
aspects of information society services referred to in Article 77 of the Constitution and the the
law of 21 Decembre 2013 on consumers right.
The information society service is defined as: "any service normally provided against
remuneration, at a distance, by electronic devices and at the individual request of a recipient
of the service."
Its field ratione personae is wider than the one of the law about trade practices (CISA) since
unlike the latter, the new law covers both the B2C B2B, but also liberal professions.

8. Regarding the material realm, the law also appears really ambitious. While the "distance
contracts focuses on the conclusion of a contract through the use of a electronic
communication system, the new law applies despite the existence of a contract and regulates a
wide variety of materials in connection with the use of digital networks.
Conversely, some areas and activities are explicitly excluded from the scope of this law:
taxation, issues relating to the protection of privacy and processing of personal data character,
issues related to the right of agreements, notaries activities (due to their direct and specific
exercise of public authority), the client representation and defence activities in justice and
gambling activities (including games, lotteries and transactions, with stakes in monetary
values).
In the spirit of the Directive, the law pays special attention to information and transparency on
networks.
b. General Information Obligation
Obviously, a website providing clear information on the identity and activities of its owner
builds trust in the visitor, allowing him to establish a link between the digital environment
and the real world. On this basis, Article 7 § 1 of the law requires the highlight of a series of
general information on the claimant and his professional activity, such as name, geographical
address of establishment the details which keep him directly and effectively in contact with
him, including an email address. If necessary, the service provider must also indicate the trade
register number, VAT number, the authorization scheme which it is subjected, the association
or professional organization to which he is registered, the professional title that it was granted
and finally the professional rules and codes of conduct to which it is subject and how to read
it.
In addition, Article 7 § 2 of the law concerning the presentation of prices states that "when
the information society services refer prices, these are indicated clearly and
unambiguously, including where if taxes and shipping costs are included. " This language,
nuanced, preserves, firstly, the obligation to mention the prices in Business to Consumer’s
relationships but on the other hand, the freedom that prevails in Business to Business’s
relationships.
c. The contractual formalism
In order to encourage the development of electronic commerce in the best conditions, the law
addresses two distinct pathways conclusions of contracts by electronic ways: first, by
requiring the provision of a range of information and the establishment of technical devices to
ensure the transparency of the contracting process (article 8-12, loi 11 mars 2003), on the
other hand, by attacking the formal obstacles to the conclusion of these contracts.

9. As everybody knows, we have witnessed in recent years an undeniable rise of contractual
formalism. In a number of recent laws - especially in consumer law and labour law - the
formal requirements have become a privileged instrument for the protection of the weaker
party, which intends to keep the risk to engage lightly. With the development of digital
networks and e-commerce, these formalities, multiple and diverse in their nature and their
objectives, may constitute obstacles to the conclusion of most electronic contracts. At least,
they create great legal uncertainty for the parties, to the extent that it is not excluded that they
may be a formalistic interpretation.
It is in this context that article 9 of the EU Directive on electronic commerce asks Member
States to adjust their legislation to the extent that it contains form requirements. In this respect,
it is not necessary to remove these, but to ensure that they can be satisfied with their
equivalents. The examination of the legislation requiring an adjustment should be systematic
and should cover all the necessary stages and acts of the contractual process. Although article
9, § 1 of the Directive is the "conclusion of electronic contracts" they are actually concerned
all stages of the "contract process" since the pre-period, including advertising, archiving,
through the offer, executing the contract, registering, etc.
Ultimately, it tries to eliminate any obstacle to the full automation of the contracting process,
to avoid any discrimination between the "paper contracts" and "electronic contracts".
d. Liability of intermediary service providers
The background already described does not seem to assert that one of the main objectives of
the directive on e-commerce has established a liability system which helps consumers to face
internet sellers. It is certain in any case that this has unleashed passions and was the subject of
intense lobbying and bitter debate during the drafting process of the Directive.
Notwithstanding the importance of the subject, because of insufficient space, we will stick to
the basics, focusing on Belgian legislature’s choices while they were transposing articles 12-
15 of the EU Directive.
Intermediaries are providers whose business is to ensure that the contents are transmitted from
third parties, hosted and made available through networks, such that they act as a bridge
between those who produce or publish these content and those who access to it. The question
that was facing the Belgian Government was:
Can any responsibility be attributed to these intermediary in cases where the content
transmitted or hosted by them was illegal?
There is an important interest’s conflict. In one hand, for intermediaries, the possibility to be
held responsible for illegal content from third parties is a significant economic risk, especially
as the volume of information they transmit or host is under systematic checks;
On the other hand, for the victims of illegal content, it is often difficult to obtain
compensation for the damage suffered from the authors of illegal or harmful content (as they
have done in anonymity or from abroad), while the access or hosting providers are known,
handy and generally creditworthy.

10. e. Provisional measures
The exemptions provided for in articles 18 and 20 of the Belgian law does not affect the
possibilities of injunctions or to obtain measures to stop or prohibition, including an order to
remove illegal information or make access to them impossible. While it seems clear that the
exemptions from liability do not affect the actions referred, the solution is less obvious in the
case of injunctions. Indeed, notwithstanding the terms used in recital 45 of the directive, it
seems that the European legislator only wanted to target the actions provisional.
However, the injunctions were under Belgian law, a range that exceeds the interim: the judge
statue terminations, permanently, to an extent that binds the trial judge asked to judge on the
liability. It would therefore be logical to consider that the exemptions from liability provided
by law shall also apply to injunctions.
f. Articles 18-21 of the law 11 Mars 2003
Overall, articles 18-21 literally transpose articles 12 and 15 of the EU Directive on E-
Commerce.
Contrarily to what was suggested by the State Council, the Belgian legislator considered
useful to confirm that the providers referred to in Articles 18, 19 and 20 have no general
obligation to monitor the information they transmit or store, nor actively to seek facts or
circumstances indicating illegal activity. (Art. 21, § 1, para. 1).
This lack of general duty of supervision does not prevent the judicial authorities to impose a
temporary oversight in a specific case (Article 21, § 1, al 2); It is, moreover, offset by a duty
of cooperation with the competent public authorities: for example, claimants referred to in
Article 21, § 1, they have the obligation to promptly inform the public prosecutor when
they knowledge of illegal activities by recipients of their service (art. 21, § 2). The latter
then takes appropriate measures up to Article 39bis of the Criminal Procedure Code. Finally,
the same service providers are required to communicate to the competent judicial or
administrative authorities any information at their request.
Contrary to what was suggested by the State Council, the Belgian legislator considered it
useful to confirm that the providers referred to in Articles 18, 19 and 20 have no obligation.
Single transport activity article 18 provides an exemption from liability for information
transmission activities provided by the recipient of the service, provided that the
provider is not at the origin of the data, does not select the receiver of the transmission
and does not select or modify the information contained in the transmission. These
conditions are cumulative. The second paragraph of Article 18 states that exempt transmission
activities include the automatic, intermediate and transient information produced for the sole
purpose of transmission.
This exemption implies that the provider does not play any active role in the
transmission and being involved in any way in the information; he loses the benefit of
the exemption if he deliberately collaborating in any way with one of the recipients of his
service. Note that the criteria of knowledge is not appropriate in the case of simply moving:

11. the intermediary may benefit from the exemption of article 18 even if, with knowledge of the
presence of illegal information to be submitted and having taken on them, it does not take
appropriate action. However, if the service provider does not perform a court order requiring
him not to transmit a particular content or block the access to it, its responsibility can be put
into cause.
g. Storage activity
Article 19 concerns the temporary storage of frequently accessed websites activity of copies
(or "mirror sites") on relay servers. This technique, called "cache" (caching system), improves
connection times to distant sites and decongests networks and increases their performance.
The provider is exempt for this type of activity provided; he acts "expeditiously to remove
the information it has stored or to make the access to it possible upon obtaining actual
knowledge that the information to the source of the transmission has been removed from the
network or the fact that access to information was made impossible, or that a judicial or
administrative authority has ordered such removal or rendering the access to it impossible,
and provided that it acts in accordance with the procedure laid down in Article 20 § 3.
h. Hosting Activity
Article 20 provides an exemption from liability for the benefit of the hosting business as
long as the provider is not aware of the presence of illegal information or to act
promptly, as soon as it has its knowledge, to remove any information or make access to them
impossible and provided that it acts in accordance with the procedure provided for. This
procedural requirement is a feature of the Belgian text. Article 20 § 3 requires the claimant
who has actual knowledge of illegal information to inform the public prosecutor who takes
the appropriate measures pursuant to Article 39bis of the Criminal Procedure Code. Under the
last paragraph of Article 20 § 3, "as long as the public prosecutor took no decision regarding
copying, inaccessibility and the withdrawal of documents stored in a computer system, the
service provider may only take measures to prevent access to information. "
i. About article 14 of the Directive
The Directive does not specify the degree of knowledge which can justify an intervention
and have not established any procedures for notification and removal (notice and take down)
likely to determine exactly who is responsible for maintaining or withdrawing the disputed
information; it follows that the total legal uncertainty appears to the hosting provider which is
subject to a questioning of his contractual liability with regard to the injured third party (if he
decides not to delete Information denounced as illegal) or its contractual responsibility to his
client (for having suppressed information that he considers perfectly legal).
Finally, the obligation imposed on hosts by Article 14 to act promptly to remove the
information or make it inaccessible, since knowledge of its illegal nature, appears

12. incompatible with the rules on computer crime. The decision, taken by a hosting provider, to
remove the supposed malicious data does not accommodate the requirements of Article 39bis
of the Criminal Procedure Code and threatens to render impossible the subsequent criminal
proceedings.
All these considerations led to the adoption of Article 20 of the law in its actual form. Both
hosting providers and judicial authorities are supposed to find their account. The first should
focus on ensuring legal certainty as soon as they have knowledge of illegal activity or
information, all they need to communicate to the public prosecutor; at the same time, they are
not prevented from taking provisional measures (to prevent access to the information,
excluding any initiative to remove them). For their part, the judicial authorities are informed
of the presence of possible illegal information and may preserve evidence. The question is
whether the King's prosecutors will be able to play this role and whether the system will work
quickly and efficiently. It is obvious to have doubts in this regard.
By the way, this law gives a legal framework for online services and e-commerce, although
some implementing regulations have yet to be adopted. Nevertheless, regardless of the
stubborn reluctance (we think consumers incentive to make payments on the net), many black
areas remain: details appear desirable or gaps to be filled regarding various issues related in
particular to electronic invoicing, archiving and time stamping of electronic documents. There
is no doubt that the Parliament will still be required to intervene in the field of services of the
information society, including a legal framework for all new business.
j. National Case Law
Belgium has known cases involving Internet service providers, hosting companies, search
engines, hyperlinks creators: business primarily on legal matters of copyright, but also on
those of paedophilia and defamation.
Regarding activities under exemption, Belgian judges stated what were the activities of
intermediary service providers may exempt, showing in this way a proper understanding of
the objectives of the Directive and the E-Commerce Law: first, as part of a recent dispute
between Belgacom to its customers (BE 1), the judge refused, rightly, the exemption from the
intermediary provider because the dispute was not about the illegality or Non-compliance
information transmitted, but billing the service provided. Then in the “copiepresse” against
Google "(BE 7 and 17), the judge deviates subtly application of electronic commerce
legislation. In this instance, given the "caching" of Google, it is not necessary temporary
storage and indexing of the page that is in question, but its accessibility. Finally, the judges of
the Court of Cassation (BE 20) considered that the installation by third parties on the
applicant manager of the site, hyperlinks to contents of a pedophile nature, was effected
under its control.
Because of this, Articles 18 and 20 of the Belgian Law on Electronic Commerce only with an
activity with a mere technical, automatic and passive can not apply in this case. On
preliminary injunctions in the Belgian case "against SABAM Tiscali" (BE 3 and 5), on the face
p2p software copyright, the judge expressly recognizes the opportunity provided by law on

13. copyright and Related Rights to order a cessation of injunction against a service provider
which is only indirectly the offender. The issue of technical capacity for simple transportation
provider, to adopt filtering measures to end the contested measures was also raised.
After receiving an expert report, the judge of the trial court made Brussels a termination
decision June 29, 2007 (BE 6) requiring the intermediary to adopt filtering measures to
prevent violations copyright recognized in the judgment of 26 November 2004. The judge
found that these measures do not consist of a general monitoring obligation (art. 21, § 1),
amongst other because they consist of "technical instruments "that are limited to block or
filter certain information that is transmitted over the network Scarlet (formerly Tiscali).
Regarding search engines, the very recent decision of the judge of first instance of Brussels
(BE 17) confirmed that the activities of Google News and the use of "cache" Google violate
the law on copyright and neighbouring rights. Previously (BE 15 and 16), the defendant was
ordered to withdraw from sites Google News and Google "cache" the entirety of the articles,
photographs and graphic representations of Belgian French-speaking daily press publishers
and German and to publish the judgment on the homepage of google.be and Google News.
2. La Loi du 21 Decembre 2013
a. About the law
The Belgian legislator decided to consolidate after a possible reform, any economic regulation
into a single commercial code through the technique of "elements in legislation." Concretely,
this means that the various books of the New Code, 17 volumes in total, are introduced in
phases.
The law of December 21, 2013 enriches the Economic Code especially in Book VI: Market
Practices and Consumer Protection.
The Code is supplemented by the corresponding definitions in the field of market practices
and consumer protection in Book I and the enforcement provisions in Book XV. Book VI is
primarily the regulation of market practices and consumer protection. This book does not just
take into account the Act of 6 April 2010 on market practices and consumer protection, it also
adapts reform and existing regulations. The new book provides in particular the
transposition of the Directive 2011/83 / EU provisions of the European Parliament and of
the Council of 25 October 2011 on consumer rights.
For now, in terms of consumer’s protection, the provisions are mainly included in the Act of 6
April 2010 on market practices. This law must also be read in conjunction with the March
11, 2003 Law called "electronic commerce", especially in the context of distant selling in
an electronic environment. The insertion of this new provision in the Economic Code

14. certainly risks disrupting industry practices to the extent that major changes are planned. The
main changes are:
• The definition of distance contract has been reviewed and clarified;
•The list of information that must be provided to the consumer before placing the order, is
considerably extended;
• The button, by which the consumer usually controls products and services, must be modified
to make clear to consumers that the acceptance of this order involves a payment from him.
The penalty is quite heavy since, in the absence of this information, the consumer will not be
bound by the order;
• Certain provisions on the mobile commerce are also included as part of the implementation
of the Economic Code; taking into account the fact that this system does not always display
all the necessary information;
• The right of withdrawal and its modalities have been reviewed and modified (modalities of
the withdrawal right, the starting point of the period, sanctions, etc.);
• The circumstances in which the right of withdrawal may be excluded are now more
numerous.
As part of the gradual implementation of the Commercial Code and the transposition of
Directive 2011/83 / EU on consumer rights, this law of 21 December 2013 provides for
insertion of provisions on consumer’s protection into the Commercial Code.
The definition of distance contract will be reviewed to better reflect article 2.7 of the
Directive. The criteria that emerges from the preparatory work for the qualifying distance
contract seems to be negotiation. A consumer who visits a facility to collect information and
then negotiate and conclude the contract via the company's website will conclude a distance
contract. Instead, a consumer who visits a facility on site and negotiates and finalizes the
contract by the use of a distance communication technique does not enter into a distance
contract within the meaning of the law. The list of information to be provided to the consumer
prior to the conclusion of a distance contract will be greatly extended.
Functionality, including technical protection measures, of digital content (software, mp3,
ebooks) and the relevant interoperability between digital content and materials will, for
example, be communicated.
If the company's fails in the supply of certain information, the consumer will not be
required to pay certain fees (delivery costs, removal costs). The consumer must be able
to read and fully understand the main elements of the contract before placing the order.
In this sense, when a contract will provide an obligation to pay the company, it will expressly
warn the consumer and the order confirmation button must clearly mention the words "order
with obligation to pay" or a similar formula, devoid ambiguity.
Otherwise, the consumer will not be bound by the contract!

15. E-commerce and its constraints in terms of presentation of the information are not forgotten.
The Code provides a minimum list of information to be provided before the conclusion of the
contract and authorizes the company to refer the consumer to another source of information
(free phone number or website of the company for example) to the remainder. Companies
should be particularly sensitive to changes in rules on withdrawal, including:
The obligation to include, in bold, in a separate frame and in the front page, a specific
clause informing him of the existence or absence disappear and the Code include, in an annex
a document enabling such information to fully inform the consumer. A standardized
procedure for implementation of withdrawal’s right is also planned. A failure to submit the
necessary information concerning the right of withdrawal, the period during which the
consumer can enjoy this right will increase from three months to twelve months now.
If the minimum period of fourteen days remains unchanged, the delay of the start point will be
changed. The refund of all payments received from the consumer, including shipping
costs (except if the consumer has expressly chosen a more expensive mode of delivery
than the standard mode), must be made by the company within fourteen days (against
thirty at present) after having been informed by the consumer of its wish to activate their right
of withdrawal. In the case of sales contracts, the company may, however, withhold the
reimbursement until recovery of property or proof of removal. The consumer must always
bear the removal costs, unless the necessary information has not been provided by the
company, and return the good within fourteen days from the communication of its wish to
retract.
The consumer shall be held liable only for depreciation of assets resulting from the
handling of goods other than those necessary to establish the nature, characteristics and the
proper functioning of the goods and provided that the company has fulfilled its obligation to
information. The circumstances in which the right of withdrawal may be excluded are more
numerous. It should be noted that this law has been changed to the project originally
presented to the House on the application to the liberal professions (lawyers, architects,
accountants.)
b. Le Code de Droit Economique – Focus on three basic articles
Focusing on the Economic Code different chapters, the 3rd title on consumer contract gives us
some useful tips.
In the General provisions, art. VI.37. § 1 explains that when all or certain terms of a contract
between a company and a consumer are written, these terms must be written in clear and
understandable way.
On its second alinea, in case of doubt about the meaning of a term, the most favourable
interpretation to the consumer shall prevail. This rule on interpretation shall not apply in the
context of the injunction issued in book XVII. A contract between a company and a consumer
may be interpreted according to the particular commercial practices directly related to it.
Art. 38, which focuses on unfair trades, states that when a consumer contract is concluded
following an unfair trade practice under Article VI. 100, 12 °, 16 ° and 17 °, and Article VI.

16. 103, 1, 2 and 8, the consumer may, within a reasonable time from the moment when he knew
or should have known of its existence, require repayment of amounts paid, without refund of
the product delivered. When a consumer contract was concluded following an unfair trade
practice under section VI. 93, VI. 95, VI. 100, 1 ° to 11 °, 13 ° to 15 °, 18 ° to 23 °, and
Article VI. 103, 3 ° to 7 °, the judge may order the repayment to consumers of the amounts
paid, without refund by the latter of the product delivered.
Focusing on Commercial Code delivery system, art. VI.43 states that unless the parties have
agreed otherwise on the time of delivery, the company delivers the goods by transferring the
physical possession or control to the consumer without undue delay, but no later than 30
days after conclusion of the contract. In case of failure of the company to the obligation to
deliver the property at the time agreed upon with the consumer or within the period, the
consumer ordered him to make the delivery within an additional adapted to the circumstances.
If the company doesn’t deliver within the said additional period, the consumer has the
right to terminate the contract. The first paragraph of this paragraph is not applicable to
sales contracts where the company refused to deliver the goods or where delivery within the
agreed delivery period is essential taking into account all the circumstances attending the
conclusion of the contract or where the consumer informs the business, before the conclusion
of the contract, that delivery on a specified date or no later than a specified date is essential. In
these cases, if the company fails to make delivery of the goods at the time agreed with the
consumer or within the period, the consumer has the right to terminate the contract
immediately.
It is clear that the article underlines the fact that upon termination of the contract, the
company shall refund, without undue delay, any amount paid under the contract.