Unfair Commercial Practices Directive, Chapter 1, Article 2, (b)

Excluding persons carrying on a free profession, dentists and physiotherapists from the scope of the regulations on unfair commercial practices, violates the legal principles on non-discrimination.

Under Belgian law, are excluded from the scope of the Belgian Market Practices Act, which also implements the rules on Unfair Commercial Practice Directive 2005/29:  persons carrying on a free profession, dentists and physiotherapists.

A claim was brought before the Constitutional Court, stating that this exclusion is unlawful and contrary to the non-discrimination principles as laid down in the Belgian Constitution.

 

The Constitutional Court first states that the rules of the Directive 2005/29 are applicable to traders, which is a notion that is broadly defined and which, at least on the European level, does not exclude persons carrying on a free profession, dentists and physiotherapists.

In relation to the protection of the consumers, persons carrying on a free profession and other traders are in a sufficiently similar situation as they both intend to provide for means of sustaining life by exercising their activity. Although the persons carrying out a free profession often deliver intellectual services, it also often occurs that they perform acts considered acts of trade under Belgian law. Equally, many companies who are not persons that do not carry on a free profession also provide for intellectual services. As a result, these two classes of enterprises should be equally treated in relation to consumer protection legislation.

As the rules of the Belgian Market Practices Act are not applicable to persons carrying on a free profession, both classes of enterprises are not equally treated.

 

Does excluding persons carrying on a free profession, dentists and physiotherapists from the scope of the regulations on unfair commercial practices, violate the legal principles on non-discrimination?

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The Constitutional Court annulled the legal provisions stating that the Belgian Market Practices Act is not applicable to persons carrying on a free profession, dentists and physiotherapists.