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The Smoking Ban: An Overview

The law revising the railway police law of April 27, 2018 to provide smoke-free platforms was introduced on May 15, 2022. As of January 2023, this regulation will make railway stations-including the platforms-smoke-free areas.

We hereby give you a list of the locations where smoking is prohibited in response to this change in the law.

Public Access to Regions That Are Bormally Off-limits

First off, smoking is not permitted in any enclosed spaces that are open to the public.

The following places are not all-inclusively listed in the law:

  • Government buildings,
  • train stations,
  • airports,
  • commercial buildings,
  • places where the general public can get services like food and drinks,
  • nursing homes for the aged,
  • schools,
  • theatres,
  • and sports facilities;

Each location must have a clear no-smoking notice posted at the entrance.

It is possible for the owner of a closed, publicly accessible space to add a smoking area. Several requirements must be met for this:

  • The smoking room may not be a transit area;
  • The smoking room must be fitted out in such a way that the discomfort caused by the smoke is limited as much as possible for non-smokers;
  • The smoking room must be clearly marked as such so that it can be recognized and located;
  • The surface of the smoking room must be less than 1/4 of the total surface area;
  • The smoking room must be equipped with an extraction or ventilation system.

Both the owner of the public space and the smoker may face consequences for violating the smoking ban. Both offences are punishable by a fine ranging from 26,00 to 1,000 euros or by up to three months in jail. Additionally, the operator could be subject to a 6-month obligatory closure.

In The Office

Every employee has the right to smoke-free work environments and communal spaces (including the toilet and dining area). The employer is responsible for taking the necessary actions and ensuring that they are followed, both by the staff members and by outside parties. He risks being charged with a crime (in accordance with the Social Penal Code) if he doesn’t comply. The Social Inspectorate employees are in charge of keeping an eye on these employer requirements.

Additionally, the employer may decide to set up a smoking area at work with the help of the Committee for Prevention and Protection at Work.

Vehicles

Additionally, it is forbidden to smoke in a car when a minor (under the age of 18) is present. The ban is also in effect while the car’s windows or roof are open. In a convertible, smoking is only permitted when the roof is entirely tucked in.

Additionally, smoking is never permitted inside any public transportation vehicle, even when it is temporarily out of service.

The laws governing the smoking ban are part of the law of December 22, 2009, which became effective on January 1, 2010. This indicates that the well-known smoking prohibition has been in effect for more than ten years!

News flash: Significant Increases in Legal Interest Rates

Belgian legal interest rates on late payments also succumb to the current financial and economic climate and see a significant increase starting on January 1, 2023, both for the ordinary legal interest rate and for the rate that applies to trade transactions.

The legal late payment interest rate that will be in effect starting on January 1, 2023, has just been announced by FOD Finance. The fact sheet is available here.

As of January 1, 2023, the standard legal interest rate will increase from 1.50% to a maximum of 5.25%.

In consequence, the interest rate on “trade transactions” goes up from 8% to 10.50%. The Late Payment Act defines “commercial transactions” as “a transaction between companies or between companies and public authorities leading to the supply of goods, the provision of services, or the design and execution of public works and building and civil engineering works against remuneration.” These transactions must be between companies or between companies and public authorities.

Therefore, as a debtor, you must now more than ever pay attention to your payment deadlines since, regardless of any contractual provisions, the interest that has always been required by law as punishment for late payments has increased significantly.

This can be a good moment for your business to assess the general terms and conditions it has about late payments. In addition, there have been significant legal developments regarding unlawful clauses that should also be considered during this assessment. See our earlier essay on Jubel about this topic.

You can always reach us by phone at 03/216.70.70 or by email at joost.peeters@studio-legale.be if you have any more questions on this topic.

GAS Fines for Limited Speeding Offences

From on February 1, 2021, Flemish cities and municipalities will have the option of issuing GAS fines for minor infractions of speeding on highways with a 30 or 50 km/h speed limit.

Not every speeding offence has a Hefty fine. Only when all five of the following conditions are met can such a fine be imposed:

  1. The first need is that the offence occurs on a road where the posted speed restriction is 30 km/h or 50 km/h (regardless of who the road authority is).
  2. The permissible top speed cannot be surpassed by more than 20 km/h as a second requirement (in addition to the technical correction of 6 km). After all, the “limited” speeding offences are the main topic.
  3. The speeding offence must be captured on camera by a municipal speed camera that belongs to the authority.
  4. The speeding offence must have been committed by a natural or legal person as the fourth requirement.
  5. The sole offence committed must have been speeding. This is the fifth requirement. No other offence may be committed concurrently. If the limited speeding offence would also include, say, running a red light, a GAS fine cannot be levied.

Within one month after the offense’s date, the offence report must be given to the sanctioning officer. The five aforementioned requirements must be satisfied in order for the sanctioning officer to grant it.

The sanctioning officer will inform the offender and initiate criminal proceedings if he determines that the aforementioned requirements have not been completed.

If the sanctioning official determines that the aforementioned requirements have been met, he shall give the PV and the Appropriate fine amount to the offender.

The offender has the option to appeal the fine in writing by providing the sanctioning officer with his arguments. The official will check to see if the GAS fine’s requirements have been met. This official has the option of accepting the defence or ruling it untrue or inadmissible. Within one month of the date of notification to the police court, the offender may file a simple petition to challenge the official’s decision.

The offending party must pay the penalties within 30 days if the official rejects the defence and you do not want to appeal.

If you disagree with a GAS fine, get in touch with us right away.

Joost Peeters and Roxanne Sleeckx are the authors.

Beware: Asbestos Certificate Mandatory As From 23 November 2022

Property owners in Flanders will be required to present an asbestos certificate to prospective buyers when selling their properties starting of November 23, 2018.

In general, this responsibility is applicable to any establishment or transfer of a right of usufruct, emphyteusis, superficies, or a right of use in rem among live persons, including any sale or donation. The asbestos certificate is only needed if the structure was built before 2001.

Also, if the asbestos certificate is accessible, landlords must give a copy of it to any (possible) tenants. But, by 2032, all owners of structures or homes older than 2001 will need to have an asbestos certificate on hand.

The owner must hire a licenced asbestos specialist to create an inventory of the building’s asbestos in order to receive the certificate. Based on the size of the structure, the certificate will probably cost between 395 and 850 euros.

When a transaction occurs, the seller transfers the certificate to the purchaser at the time of the commitment contract. Nonetheless, buyers might ask the seller for the attestation in before.

See https://ovam.vlaanderen.be/veelgestelde-vragen-over-het-asbestattest for more details.

About Asbestos

Asbestos is a fibrous silicate material that occurs naturally. Mesothelioma, asbestosis, and lung cancer are just a few of the deadly lung disorders that can develop from inhaling asbestos fibres.

The use of asbestos for strengthening pottery pots dates back to the Stone Age, according to archaeological investigations, but large-scale mining only started at the end of the 19th century when manufacturers and construction companies started employing asbestos for its advantageous physical features.

Many nations have outlawed the use of asbestos in building and fireproofing. This is partially due to the fact that asbestos is still present in many older structures, and it can take decades for the effects of exposure to manifest.

Asbestos mining continues, with Russia, the world’s leading producer, expected to generate 790,000 tonnes of asbestos in 2020.

Revision And a Look at The Future: Unlawful Terms

A contract is a legally enforceable agreement that creates, defines, and governs mutual rights and terms among its parties. A contract typically involves the transfer of goods, services, money, or a promise to transfer any of those at a future date.

We have already touched upon the fact that, since 1 December 2020, the B2B Act of 4 April 2019 has ensured that consideration is given to the imbalances which may exist between contracting companies and that, for this purpose, provisions have been introduced, among other things, regarding unlawful terms which are not possible, or sometimes only under strict conditions, in such contracts.

The new law on obligations now seeks to extend this to common law and thus to C2C contracts as well. We will first briefly recall the main principles of the B2B Act and then look at the Draft Law and its possible impact.

The B2B-Act

Scope

The provisions of the B2B-Act apply to enterprises as defined in Book VI of the Economic Code. Thus, the new concept of an enterprise is not used in this book and the condition of “the durable pursuit of an economic objective” is still required. A remarkable consequence of this is that the local non-profit association will more than likely not be entitled to the protection of the B2B-Act.

As far as contractual terms in relations between undertakings covered by this definition are concerned, the B2B Act which entered into force on 1 December 2020 will be applicable as far as agreements concluded, renewed or amended after 1 December 2020 are concerned.

Unlawful terms

Very similar to consumer law, B2B-Act has attempted to deal with terms that create an apparent imbalance between the rights and obligations of parties. Specifically, this was done by introducing a general testing standard on the one hand and by working with the so-called specific “grey” and “black” list of unlawful terms on the other hand.

General testing standard

Article VI.91/3, §1 WER incorporates this general testing standard as follows: “For the purposes of this Title, any contractual term concluded between enterprises which, alone or in conjunction with one or more other terms, creates an obvious imbalance between the rights and obligations of the parties is unlawful.”

The “imbalance” should be read in terms of a “legal imbalance”. The economic balance, i.e. what parties agree on at what price, still depends on the free market in which, among other things, commercial customs are an important parameter. Paragraph 2 of the aforementioned article clarifies that this apparent imbalance must always be assessed in concrete terms in the context of all the circumstances
surrounding the agreement. Finally, the last paragraph makes it clear that the core terms, insofar as they are clear and intelligible, are not subject to this testing standard.

Black list

Article VI.91/4 contains four terms which deviate so much from the basic principles of civil law and create a serious imbalance between the rights and obligations of the parties that they are considered to be absolutely prohibited terms, hence the need for a very strict interpretation.

  1. Purely discretionary clauses
  2. Terms giving the right to unilaterally interpret the contract.
  3. Clauses excluding any means of redress
  4. Clauses establishing in an irrefutable manner the knowledge or acceptance of the other party

Grey list

Article VI.91/5 contains the terms which are presumed to be unlawful unless proven otherwise, and reads as follows:

  1. granting the company the right to change unilaterally the price, characteristics or conditions of the contract without valid reason;
  2. tacitly extend or renew a fixed-term contract without giving a reasonable notice;
  3. without compensation, transferring the economic risk to one party when it would normally be transferred to the other company or another party to the contract;
  4. inappropriately exclude or limit the legal rights of a party in the event of total or partial non-performance or defective performance by the other undertaking of any of its contractual obligations;
  5. without prejudice to Article 1184 of the Civil Code, to bind the parties without giving reasonable notice;
  6. to release the company from its liability for its wilful misconduct, its gross negligence or that of its agents or, except in cases of force majeure, for non-performance of the essential obligations that are the subject of the agreement;
  7. to limit the means of proof that the other party can use; and
  8. in the event of non-performance or delay in performance of the other party’s obligations, to fix amounts of compensation that are manifestly disproportionate to the prejudice that may be suffered by the enterprise.

In practice, this article means a reversal of the burden of proof to the strong contracting party.

The principle of this list is fairly easy to explain by means of a very actual topic. The first type of unlawful clause in the grey list is the one that grants the right to unilaterally change the price, characteristics or conditions of the contract without good reason. This clause will therefore be unlawful and considered null and void, unless the enterprise can prove that there is a valid reason and that no manifest imbalance is created between the parties. If we apply this to price alteration clauses, which are very topical in view of, among other things, the COVID-19 pandemic and today’s very unfortunate situation in Ukraine, then valid/objective reasons must be at the basis of such a clause. In principle, a price alteration clause that makes this dependent on, for example, changes in the price of resources, suppliers, regional taxes or charges, etc., will contain a sufficient objective justification so that such a clause will not be unlawful, which is to be welcomed. When including such a clause, the enterprise is well advised to be as specific and clear as possible about the criteria for changes. If one wishes to include a term which normally falls under the grey list, the parties can let their freedom of contract prevail if they can demonstrate that they really wanted to make this arrangement for legitimate economic reasons.

Sanction

Article 91/6 reads as follows: “Any unlawful term is prohibited and null and void. The contract shall remain binding on the parties if it can continue to exist without the unlawful terms.”

In principle, therefore, only the unlawful clause itself is null and void and the contract can continue to exist without it. Only if the relevant term is so crucial that it affects the entire contract will the latter be null and void.

Draft of new law on obligations

Scope

The legislator is rightly so of the opinion that it is problematic that since the B2B-Act unlawful terms have been prohibited in both B2B and B2C relationships, yet they can still be used in C2C relationships. This is seen as a possible conflict with the constitutional principle of equality.

The Draft Law provides for the application of the unfair terms doctrine to B2B, B2C and C2C relations.

Furthermore, Article 5:52 of the Draft Law reads:

“Any non-negotiable clause which creates an obvious imbalance between the rights and obligations of the parties is unlawful and will be considered as not written.

When assessing the apparent imbalance, all circumstances surrounding the conclusion of the contract are taken into account.

Paragraph 1 shall not apply either to the determination of the main terms of the contract or to the determination of the equivalence of those terms.”

In the original version of this article in the Draft Law, its effect was limited to accession agreements. In the meantime, the legislator has abandoned this. It was clarified that the previous version was too restrictive of the effect of the prohibition, which, according to the legislator, should have a supplementary effect on the existing specific regulations that already exist in contracts between companies and consumers and between companies.

Article 5:13 of the Draft Law clarifies that it does not affect the application of specific legislation, as the Draft Law concerns so-called lex generalis. As far as B2B and B2C are concerned, the existing legislation will continue to apply without prejudice and the Draft Law can at most have a supplementary effect.

General testing standard without lists

It is clear that the proposed Law seeks to achieve the same as the B2B-Act, namely to prohibit terms which create an apparent imbalance between the rights and obligations of the parties to a contract. In the preparatory works of the Draft Law, we read that this is pursued without affecting the principle of contractual freedom or legal certainty. In other words, freely negotiated contract terms should not be affected by the doctrine of unfair terms. Partly for this reason, only ‘manifest’ imbalances are targeted, as a result of which the court can only apply a marginal review and must always look at the contract as a whole.10 In this respect, the Draft Law creates more clarity than the B2B-Act, since the latter does not exclude negotiated agreements from its application.

As in the B2B-Act, the court will not be able to touch “the main provisions of the contract, nor the equivalence of these main provisions”. Thus, for example, the agreed price will not be affected.

Sanction

Under the Draft Law, an unlawful term will have no effect by being deemed unwritten and will leave the remainder of the contract unaffected if it can continue to exist without the invalid term.

Conclusion

It is clear that the legislator wanted to resolve a possible disparity in the application of the doctrine of unfair terms by introducing it into the Civil Code in a general provision applicable to all relations, without prejudice to more specific regulations already in existence.

The result is that there are three possible sources of legislation on unfair terms, which is hardly beneficial to clarity. In addition, it appears that although the intention is the same, the situation is not entirely identical.

One can and does wonder whether, as regards the relationship with B2B legislation, after the entry into force of the provisions of the Draft Law in the New Civil Code, the interaction will not become unnecessarily complex and whether the provisions in the Civil Code may suffice. The main point of criticism is that the lists, and in particular the grey list, in the B2B-Act do not provide the intended guidance and legal certainty due to the rather vague wording, which is open to interpretation.

In any event, the legislator itself seems to be of the opinion that the Draft Law constitutes a more adequate implementation of the doctrine of unlawful terms than the B2B Act:

“In that context, the proposed text aims at introducing into Belgian contract law a general provision to prohibit abusive terms, while ensuring that their effects are limited in accordance with the principles of freedom of contract, proportionality and legal certainty. It will be up to the legislator to decide, in the light of the planned evaluation of the Act of 4 April 2019 and its assessment by the doctrine, whether this law should be maintained or whether the interests of companies are not already sufficiently protected by the general provision inserted in Book 5.”

With this, the legislator alludes to the four-yearly evaluation provided by the B2B Act in Article VI.91/7 WER.

As it now appears, the Draft Law returns to the essence, striking a balance between protecting against and combating unlawful terms without unduly restricting the contractual freedom of the parties to negotiate deviations from the “standard balance” of rights and obligations between the parties.

In that respect, the planned evaluation of the B2B-Act seems an ideal moment to take a closer look. Until then, everyone will have to find their way through the multitude of legislation on unlawful terms.

We will follow up on the developments after the above-mentioned provisions of the Draft Law come into effect.

We can assist you in reviewing the terms of your agreements and in drafting them so as to avoid, as far as possible and foreseeable, any revision.

For further questions and information, please contact us by phone at 03/216.70.70 and by e-mail at info@studio-legale.be.

UberX: 2000 Drivers Without a Job after Court of Appeal Decision?

The courts of appeal are the main appellate courts in the judicial system of Belgium, which hear appeals against judgements of the tribunals of first instance, the enterprise tribunals and the presidents of those tribunals in their judicial area.

Since 26 November 2021, around 2000 drivers and many more passengers will no longer be able to use the app UberX. This was decided by the Brussels Court of Appeal. In the meantime, a temporary emergency ordinance has been approved in view of a later definitive Brussels taxi reform so that the Uber drivers, under strict conditions, can once again operate in the capital.

In its order to cease, the Commercial Court of Brussels imposes a ban on the application UberPop because Uber would work with private individuals who transport people for a fee. In doing so, Uber would be unfairly competing with taxi companies, as Uber drivers would not have to hold a taxi license. Per illegal ride via UberPop, the company would have to pay a fine of €10000. As a reaction, Uber launched UberX, an application whereby Uber only cooperates with drivers who possess a so-called VVB permit, a permit to rent out a vehicle with driver, like limousine drivers.

Also in Europe, the qualification of the platform Uber as a transport company was subject to discussion. As already described in our previous article: UBER – Transport company, the Court of Justice decided in 2017 that Uber’s service should be qualified as a transport service and not as an information society service.

This was prompted by a preliminary question in a dispute between Uber drivers and a professional association of taxi drivers in the city of Barcelona, on the grounds that Uber drivers were driving without a license, which would violate Spanish competition law. Uber drivers were therefore required to comply with Spanish taxi regulations to avoid committing an act of unfair competition.

Back at home, on January 16, 2019, the French-speaking Commercial Court of Brussels ruled that the ‘taxi company’ Uber complied with Brussels legislation on paid passenger transport. Uber would act as an intermediary without offering taxi services. Based on the ruling, Uber was allowed to continue offering its services in Brussels, much to the frustration of Febet, “Fédération Belge des Taxis”. The latter therefore filed an appeal against the judgment, since Uber drivers were said to be abusing their VVB licence.

It is against this appeal that the Court of Appeal has now decided to reverse the decision and extend the 2015 order to cease to the UberX application. As of November 26, 2021 around 6pm, Uber is no longer allowed to offer its services through UberX under penalty of fines. Only drivers with a taxi license would still be allowed to work via UberX.

In the meantime, on December 10, the Government of Brussels reached an agreement on a temporary solution with a view to a later, definitive Brussels taxi reform. The temporary arrangement will run until the ordinance on the reform of the taxi sector comes into force, which should establish a fully-fledged unique status for the profession. In this way, the Uber drivers will be able to get back on the road under strict conditions.

For example, they will only be allowed to drive on the basis of an exploitation license applied for by January 15, 2021 at the latest, and drivers will have to prove, among other things, that they offer their services for more than 20 hours a week on average. Also, the rides will have to be ordered in advance via a platform, physical soliciting of customers is prohibited. Finally, they will not be allowed to station themselves on public roads or at the reserved taxi stands.

“My government has worked very hard and we are pleased that today we can propose a temporary solution, which should make it possible for drivers affected by the Uber’s decision to return to work quickly. This proposal respects the court rulings of recent years on this electronic platform and at the same time paves the way for the future ordinance that will establish a fully-fledged unique status for the profession. I am very pleased about that,” said Minister President Rudi Vervoort.

But less than three weeks later, the Brussels government has opted for a different interpretation of the temporary emergency ordinance. Thus, drivers with a Walloon or Flemish Uber licence would no longer be allowed to work in the capital.

Minister-President Rudi Vervoort even threatens to withdraw the licence of Uber if it turns out that Uber deliberately allows Flemish and Walloon drivers to drive in Brussels. The Uber saga thus does not seem to have come to an end yet.

To be continued…

If you still have questions after reading this article, please do not hesitate to contact us by sending a mail to joost.peeters@studio-legale.be or by calling: +32 (0) 3 216 70 70.