The waiting period

Next week it is the official start of the summer sales,
which is as always preceded by the waiting period,
during which it is prohibited to announce reductions.
Nonetheless, supported by the Belgian Supreme Court,
different stores already offer sales to their consumers.

Despite the recent case law of the Supreme Court and the European Court of Justice, the Belgian government hangs on to the waiting period.

In its judgment of 2 November 2012, the Supreme Court has found the waiting period in violation with the Directive 2005/29 concerning unfair-business–to-consumer practice, as long as the waiting period serves the interests of the consumers.

On the other hand, if it would be in favor of the traders, it would fall outside the scope of the Directive and would be a national issue.

The preparatory works of the legislation, article 53 of the law of 14 July 1991 on trade practices and consumer protection, concerning the waiting period confirms however that this measure is implemented in order to protect the consumers. As a result, it goes against the Directive.

The government now persists (out of concern for the traders) and justifies the waiting period on the new legislation of 6 April 2010 concerning market practices and consumer protection, while the Supreme Court has based it judgment on the old legislation.

In other words, the government deems the judgment of the Supreme Court outdated.

Even so, the government forgets that the new legislation is practically identical to the old legislation, with the difference that now the waiting period starts three weeks before the sales, instead of six, and that it is limited to clothing, leather goods and shoes, basically the products where the sales are all about.

More important, the philosophy of the new legislation has not changed. The waiting period still aims at the protection of consumers. After all, the preparatory works of the new legislation support the waiting period by referring to a judgment of the Court of Appeal of Brussels of 12 May 2009.

Yet it is this judgment, which has been overruled by the Supreme Court.

Hence, it is rather strange that the government bends over backwards to justify the waiting period, given that there are no solid legal grounds to back it up. It is fair to say that the judgment of the Supreme Court has to be followed and so-called violators cannot be sanctioned. Only a change in legislation, which would regulate the waiting period specifically in the advantage of traders, could provide clarity.

But was the purpose of waiting period not to protect the consumers in the first place?

26 June 2013

Griet Verfaillie -
Lynn Pype -

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