5 JUIN 2007. - An Act to amend the Commercial Practices and Consumer Information and Protection Act of 14 July 1991 (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It transposes the provisions of Directive 2005/29/EC of the European Parliament and the Council of 11 May 2005 on unfair business practices of enterprises vis-à-vis consumers in the domestic market and amends Council Directive 84/450/EEC and Council Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and Council and Regulation (EC) No 2006/2004 of the European Parliament and the Council.
Art. 2. An article 39bis, as follows, is included in the Act of 14 July 1991 on trade practices and information and consumer protection:
"Art. 39bis. Without prejudice to specific regulations that expressly authorize it, it is prohibited for the seller to have a letter of exchange signed by the consumer to be promised or guaranteed the payment of the obligations of the consumer. "
Art. 3. It is inserted in Chapter V - General provisions concerning the sale of products and services to the consumer, of the same law, a section 5, including section 39ter, with the following title:
“Section 5 - The execution of the contract."
Art. 4. An article 39ter, which reads as follows, is included in the Act of 14 July 1991 on trade practices and information and consumer protection:
"Art. 39ter. It is prohibited for the seller to charge telephone calls for which the consumer must pay the content of the message, in addition to the call rate, when these calls relate to the execution of an already concluded sales contract. »
Art. 5. In section 43, § 4 of the Act, amended by the Act of 25 May 1999, the words "as provided for in Article 23 bis" are replaced by the words "as set out in Article 94/1".
Art. 6. In section 78 of the same law, replaced by the law of 25 May 1999, the current text of which will form § 1^er, it is added a § 2, which reads as follows:
Ҥ2. Without prejudice to sections 55, 56 and 57, any free offer of goods, services or any other benefit is permitted only if the request to obtain it is on a document separate from any product or service purchase order. "
Art. 7. The title of Chapter VII of the Act is replaced by the following title:
Chapter VII - Advertising and unfair business practices."
Art. 8. It is inserted in chapter VII - From advertising and unfair business practices, from the same law, a first section, including section 93, with the following title:
"Section 1 - Definitions".
Art. 9. Section 93 of the Act is replaced by the following provision:
"Art. 93. For the purposes of this chapter, the following means:
1° consumer: any natural person who acquires or uses for purposes excluding any professional character of the products or services marketed;
2° outputs: tangible property, immovable property, rights and obligations;
3° Advertising: any communication that has a direct or indirect purpose to promote the sale of products or services, regardless of the place or means of communication being implemented;
4° comparative advertising: any advertisement that explicitly or implicitly identifies a competitor or products or services offered by a competitor;
5° commercial practices: any action, omission, conduct, approach or commercial communication, including advertising and marketing, by a seller, directly related to the promotion, sale or supply of products or services to consumers;
6° Substantial alteration of consumer economic behaviour: the use of a commercial practice that significantly jeopardizes the ability of the consumer to make an informed decision and consequently to make a commercial decision that it would not otherwise have made;
7° Code of Conduct: an agreement or a set of rules that are not imposed by legislative, regulatory or administrative provisions and that define the behaviour of vendors who undertake to be bound by it with respect to one or more commercial practices or one or more sectors of activity;
8° professional care: the level of specialized competence and care that the seller is reasonably expected to exercise in his or her area of activity vis-à-vis the consumer, in accordance with the honest commercial use;
9° invitation to purchase: a commercial communication indicating the characteristics of the product or service and its price appropriately according to the means used for this commercial communication and thus allowing the consumer to make a purchase;
10° unjustified influence: the use of a position of force vis-à-vis the consumer in such a way as to put pressure on the consumer, even without resorting to physical force or threatening to do so, in such a way that his ability to make an informed decision is significantly limited;
11° commercial decision: any decision made by a consumer regarding the opportunity, terms and conditions relating to the fact of buying, making a full or partial payment, keeping, undoing or exercising a contractual right in relation to the product or service, whether it has led to the act or to refrain from acting. "
Art. 10. It is inserted in chapter VII - From advertising and unfair business practices, from the same law, a section 2, including section 94/1, with the following title:
"Section 2 - Comparative advertising."
Art. 11. Section 94 of the Act is replaced by the following provision:
"Art. 94/1. § 1^er. Comparative advertising is lawful as long as the following conditions are met, with respect to comparison:
1° it is not misleading within the meaning of articles 94/2, 1° to 5°, 94/6 to 94/8;
2° compares products or services that meet the same needs or have the same purpose;
3° it objectively compares one or more essential, relevant, verifiable and representative characteristics of these products and services, the price of which may be part of;
4° it does not cause confusion on the market between the advertiser and a competitor or between the brands, trade names, other distinctive signs, products or services of the advertiser and those of a competitor;
5° does not result in discrediting or denigrating marks, trade names, other distinctive signs, products, services, activities or situations of a competitor;
6° for products having an original name, it refers in each case to products having the same name;
7° it does not unduly benefit from the notoriety attached to a brand, a trade name or other distinctive signs of a competitor or the original name of competing products;
8° does not present a product or service as an imitation or reproduction of a product or service bearing a trademark or trade name protected.
§ 2. Any comparison referring to a special offer must clearly and unequivocally indicate the date on which the special offer is terminated or, if any, the fact that it is valid until the product or service has been exhausted and, if the special offer has not yet begun, the date of the beginning of the period during which a special price or other specific conditions are applicable.
§ 3. Any comparative advertising that does not comply with the conditions set out in §§ 1^er and 2. "
Art. 12. It is inserted in chapter VII - From advertising and unfair business practices, from the same law, a section 3, including sections 94/2 and 94/3, with the following title:
« Section 3 - Advertising and practices that are contrary to honest usage between sellers."
Art. 13. Section 94bis of the Act, inserted by the Act of 25 May 1999, is replaced by the following provision:
"Art. 94/2. Without prejudice to other legal or regulatory provisions, any advertisement is prohibited between sellers:
1° that includes statements, indications or representations that may mislead the identity, nature, composition, origin, quantity, availability, mode and date of manufacture or characteristics of a product or effects on the environment; by characteristics, it is necessary to hear the benefits of a product, especially from the point of view of its properties, its possibilities of use, the results that may be expected of its use, the conditions to which it may be obtained, including the price or method of establishment and the essential characteristics of the tests or controls performed on the product and the services that accompany it;
2° that includes statements, indications or representations that may mislead the identity, nature, composition, duration, availability, date of service or characteristics of a service; by characteristics, it is necessary to hear the benefits of a service, particularly from the point of view of its properties, results that may be expected of its use, conditions to which it may be obtained, including the price or method of establishment and the essential characteristics of the tests or controls performed on the service and the services that accompany it;
3° that includes statements, indications or representations that may mislead the identity or qualities of the seller of a product or service;
4° by which the seller omits essential information in order to mislead the same elements as those referred to in 1°, 2° and 3°;
5° which, given its overall effect, including its presentation, cannot be clearly distinguished as such, and which does not include the word "advertising" in a legible, apparent and unambiguous manner;
6° that, without prejudice to the provisions set out in section 94/1, contains denigrating elements in respect of another seller, its products, services or activity;
7° which, without prejudice to the provisions provided for in Article 94/1, includes misleading, denigrating or implying without necessity the possibility of identifying one or more other sellers;
8° that, without prejudice to the provisions of Article 94/1, includes elements that may create confusion with another seller, products, services or activity;
9° that deals with an offer of products or services, where the seller does not have sufficient stock or can effectively preclude the services that should normally be provided, given the extent of the advertisement;
10° that promotes an act that must be considered a breach of this Act or an offence under sections 102 to 105;
11° that falsely states that a product or service is of a nature to cure diseases, malfunctions or malformations;
12° which includes in the promotional material an invoice or similar document requesting payment, which gives the impression that the product or service has already been ordered while that is not the case;
13° which, in the promotional material, conceals or provides in a unclear manner substantial information on the consequences of the response given by the recipient or conceals, provides in a unclear manner or does not indicate its true commercial intention, provided that it is not clear from the context. "
Art. 14. Section 94ter of the Act, inserted by the Act of 3 December 2006, is replaced by the following provision:
"Art. 94/3. Any act that contravenes honest commercial uses by which a seller infringes or may affect the professional interests of one or more other sellers. "
Art. 15. It is inserted in chapter VII - From advertising and unfair business practices, from the same law, a section 4, including sections 94/4 to 94/11, with the following title:
“Section 4 - Unfair business practices against consumers."
Art. 16. It is included in chapter VII, section 4 - Unfair business practices with respect to consumers, in the same Act, sub-section 1^re, including Article 94/4, with the following title:
"First Sub-Section - Application Field".
Art. 17. Article 94/4, as follows, is inserted in the same law:
"Art. 94/4. This section applies to unfair business practices of vendors vis-à-vis consumers before, during and after the offer on sale and sale of goods or services. "
Art. 18. It is included in chapter VII, section 4 - Unfair business practices with respect to consumers, the same law, a sub-section 2, including section 94/5, with the following title:
"Subsection 2 - Unfair business practices."
Art. 19. Article 94/5, as follows, is inserted in the same law:
"Art. 94/5. § 1^er. Unfair business practices are prohibited.
§ 2. A commercial practice is unfair if it is contrary to the requirements of professional diligence and if it alters or is likely to substantially alter the economic behaviour of the consumer to whom it addresses, in relation to the product or service.
Commercial practices, which are likely to substantially alter the economic behaviour of a clearly identifiable group of consumers because they are particularly vulnerable to the practice used or to the product or service that it concerns, due to mental or physical infirmity, age or credulity, while the seller may reasonably be expected to predict this consequence, are assessed from the point of view of the average group of the member to whom This provision is without prejudice to the current and legitimate advertising practice of making exaggerated statements or statements that are not intended to be understood in the literal sense.
§ 3. Deceptive and aggressive business practices referred to in articles 94/6 to 94/11 are unfair. "
Art. 20. It is included in chapter VII, section 4 - Unfair business practices with respect to consumers, in the same Act, a subsection 3, including sections 94/6 to 94/8, with the following title:
"Subsection 3 - Deceptive business practices."
Art. 21. Article 94/6, as follows, is inserted in the same law:
"Art. 94/6. § 1^er. A commercial practice is deemed misleading if it contains false information or in any way, including its general presentation, it induces or is likely to mislead the consumer, in respect of one or more of the elements cited in paragraph 2, even if the information presented is factually correct, and that it brings it or is likely to lead it to make a commercial decision that it would not have made.
Paragraph 1^erinformation on:
1° the existence or nature of the product or service;
2° the main characteristics of the product or service, such as its availability, benefits, risks, performance, composition, accessories, after-sales service and processing of claims, the mode and date of manufacture or delivery, its ability to use, use, quantity, specifications, geographical or commercial origin or the results that may be expected of its use, or the results and characteristics of the product or service,
3° the extent of the seller's commitments, the motivation of commercial practice and the nature of the sales process, as well as any affirmation or symbol that the seller or product or service enjoys direct or indirect sponsorship or support;
4° the price or method of calculating the price, or the existence of a specific advantage as to the price;
5° the need for service, spare parts, replacement or repair;
6° the nature, qualities and rights of the seller, such as its identity and heritage, qualifications, status, approval, affiliation or links and industrial, commercial or intellectual property rights or the rewards and distinctions it has received;
7° the rights of the consumer, in particular the right of replacement or refund under the provisions of the law of 1^er September 2004 on consumer protection in the event of sale of consumer goods, or the risks it may take.
§ 2. It is also deemed misleading a commercial practice which, in its factual context, taking into account all its characteristics and circumstances, leads or is likely to lead the consumer to make a commercial decision that it would not otherwise have made, when it involves:
1° any marketing activity involving a product or service, including comparative advertising, creating confusion with another product, service, brand, trade name or other distinctive sign of a competitor;
2° the non-compliance by the seller of commitments contained in a code of conduct by which he committed to be bound, as long as these commitments are firm and verifiable and that he indicates that he is bound by the code. "
Art. 22. Section 94/7, as follows, is inserted in the same Act:
"Art. 94/7. § 1^er. A commercial practice is considered a misleading omission if, in its factual context, taking into account all its characteristics and circumstances, as well as the limitations of the means of communication used, it omits substantial information that the consumer needs, given the context, to make a commercial decision in the knowledge of the case and, therefore, brings it or is likely to lead it to make a commercial decision that it would not otherwise have taken.
§ 2. Also considered a misleading omission, a commercial practice by which a seller conceals substantial information as defined in § 1^er or provides it in a manner that is unclear, intelligible, ambiguous or untimely, or where it does not indicate its commercial intention as long as it is not already within the context and where, in any case, the consumer is thus led or is likely to be led to a commercial decision that he would not otherwise have made.
§ 3. When the means of communication used for commercial practice imposes space or time limits, it is appropriate, in order to determine whether information has been omitted, to take into account these limits and any measures taken by the seller to make information available to the consumer by other means.
§ 4. At an invitation to purchase, are considered substantial, as long as they do not already come from the context, the following information:
1° the main characteristics of the product or service, to the appropriate extent in respect of the communication used and the product or service concerned;
2° the geographical address and identity of the seller, and where applicable, the geographical address and the identity of the seller on whose behalf it acts;
3° the price of all taxes included, or where the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where applicable, all additional costs of transport, delivery and postal, or, where these costs cannot reasonably be calculated in advance, the mention that these costs may be borne by the consumer;
4° the payment, delivery, execution and processing of claims, if they differ from the conditions of professional diligence;
5° where applicable, the existence of a right to waiver or cancellation.
§ 5. Also considered to be substantial information relating to commercial communications, including advertising and marketing, as provided by Community law, including the articles of the directives referred to in Annex II of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 on unfair business practices of enterprises vis-à-vis consumers in the domestic market and amending Council Directive 84/450/EEC and Directives 97/EC, 98/27/EC "
Art. 23. Article 94/8, as follows, is inserted in the same law:
"Art. 94/8. Are unfair business practices in all circumstances misleading business practices that are:
1° for a seller, claim to be a signatory to a code of conduct while it is not;
2° display a certificate, quality label or equivalent without obtaining the necessary authorization;
3° to state that a code of conduct has been approved by a public or other body while it is not the case;
4° to state that a seller, or its business practices, or that a product or service has been approved, approved or authorized by a public or private organization, but that is not the case or that it does not meet the conditions of the approval, approval or authorization received;
5° propose the purchase of goods or services at a specified price without revealing the plausible reasons that the seller may think that it will not be able to provide itself, or by another seller, the products or services in question or products or services equivalent to the price indicated, for a period and in quantities that are reasonable given to the product or service, the extent of the advertisement made for the product or service and the proposed price
6° propose the purchase of products or services at a specified price, and then:
(a) refuse to present to the consumer the product or service that has been advertised,
(b) refuse to take or deliver orders concerning this product or service within a reasonable period of time;
(c) present a defective sample for the purpose of promoting a different product or service;
7° falsely declare that a product or service will only be available for a very limited period of time or that it will only be available under special conditions for a very limited period of time in order to obtain an immediate decision and deprive the consumer of an opportunity or sufficient time to make an informed choice;
8° commit to providing after-sales service to consumers with whom the seller communicated prior to the transaction, in a language that is not one of the national languages, and then to provide this service only in another language, without clearly informing the consumer before the latter engages in the transaction;
9° declare or give the impression that the sale of a product or service is lawful while it is not;
10° to present the rights conferred on the consumer by legal or regulatory provisions as a characteristic of the proposal made by the seller;
11° use editorial content in the media to promote a product or service, while the seller has financed it itself, without clearly indicating it in the content or using images or sounds clearly identifiable by the consumer;
12° make factually inaccurate statements regarding the nature and extent of the risks to which the consumer exposes himself in terms of his personal safety or that of his family if he does not purchase the product or service;
13° to promote a product or service similar to that of a particular manufacturer so as to deliberately induce the consumer to think that the product comes from that same manufacturer while that is not the case;
14° declare that the seller is about to cease its activities or to establish them elsewhere, whereas such is not the case, without prejudice to sections 46 and following;
15° affirming a product or service that it increases the chances of winning games;
16° falsely assert that a product or service is of a nature to cure diseases, malfunctions or malformations;
17° communicate factually inaccurate information on market conditions or opportunities to find the product or service, with the aim of inducing the consumer to acquire the product under less favourable conditions than normal market conditions;
18° affirm that a contest is organized or that a prize can be won without awarding the prices described or a reasonable equivalent;
19° describe a product or service as "free", "free of charge", "free of charge" or other similar terms if the consumer must pay anything other than the inevitable costs associated with the response to the offer and taking possession or delivery of the item;
20° include in the promotional material an invoice or similar document requesting payment that gives the consumer the impression that he has already ordered the product or service while that is not the case;
21° falsely assert or give the impression that the seller does not act for purposes that fall within the framework of his professional activity or appear falsely as a consumer;
22° falsely create the impression that after-sales service in relation to a product or service is available in a Member State other than that in which it is sold. "
Art. 24. It is included in chapter VII, section 4 - Unfair business practices with respect to consumers, in the same Act, sub-section 4, including sections 94/9 to 94/11, with the following title:
"Subsection 4 - Aggressive business practices."
Art. 25. Article 94/9, as follows, is inserted in the same law:
"Art. 94/9. A commercial practice is deemed to be aggressive if, in its factual context, in the light of all its characteristics and circumstances, it affects or is likely to alter significantly, due to harassment, coercion, including the use of physical force, or an unjustified influence, the freedom of choice or conduct of the consumer in respect of a product or service, and, consequently, would not have taken it "
Art. 26. Section 94/10, as follows, is inserted in the same Act:
"Art. 94/10. In order to determine whether a commercial practice uses harassment, coercion, including physical force, or unwarranted influence, the following elements are taken into account:
1° the time and place where the practice is implemented, its nature and its persistence;
2° the use of physical or verbal threat;
3° knowingly exploiting by the seller of any particular misfortune or circumstance of a particular gravity that alters the judgment of the consumer, with the aim of influencing its decision with respect to the product or service;
4° any non-contractual, paid or disproportionate obstacle imposed by the seller when the consumer wishes to assert his or her contractual rights, in particular to terminate the contract or to change the product or service or seller;
5° any threat of action while this action is not legally possible. "
Art. 27. Article 94/11, as follows, is inserted in the same law:
"Art. 94/11. Are unfair business practices in all circumstances, aggressive business practices that aim to:
1° give the consumer the impression that he will not be able to leave the premises before a contract has been concluded;
2° make personal visits to the consumer's home, ignoring his request to see the seller leave the premises or not return to it, without prejudice to legal or regulatory provisions authorizing it to ensure the performance of a contractual obligation;
3° to engage in repeated and unsolicited requests by telephone, fax, e-mail or any other remote communication tool, without prejudice to legal or regulatory provisions authorizing it to ensure the performance of a contractual obligation and without prejudice to Article 94/17 and Article 14 of the Act of 11 March 2003 on certain legal aspects of the services of the information society;
4° oblige a consumer who wishes to apply for an insurance policy compensation to produce documents that cannot reasonably be considered relevant to the determination of the validity of the application or to systematically refrain from responding to relevant correspondence, with the aim of deterring the consumer from exercising his contractual rights;
5° in an advertisement, directly encourage children to buy or persuade their parents or other adults to buy them the advertised product;
6° explicitly informs the consumer that if it does not purchase the product or service, employment or means of existence of the seller will be threatened;
7° give the false impression that the consumer has already won or will win, whether or not the completion of formality, a prize or other equivalent advantage, while in fact,
- or there is no price or other equivalent benefit,
- the completion of formality in relation to the demand for the price or another equivalent benefit is subject to the obligation of the consumer to pay money or to bear a cost. "
Art. 28. It is inserted in chapter VII - From advertising and unfair business practices, from the same law, a section 5, including sections 94/12 to 94/17, with the following title:
"Section 5 - Common Provisions".
Art. 29. Article 94/12, as follows, is inserted in the same law:
"Art. 94/12. § 1^er. Any advertisement indicating a price or price reduction shall indicate it in accordance with the requirements of Articles 3 and 4, and, where applicable, Article 5 and the provisions made under Article 6, 1.
§ 2. Any advertisement concerning prepackaged products in pre-determined quantities shall mention the nominal quantities of the contents of the packagings, in accordance with the provisions of Chapter II, section 2, when the advertisement mentions the selling prices of these products. "
Art. 30. Section 94/13, as follows, is inserted in the same Act:
"Art. 94/13. § 1^er. Where, pursuant to section 101, the Minister or agent commissioned by him under section 113, § 1^erinforms a seller or advertiser of an advertisement, that a commercial practice or an advertisement is contrary to the provisions of this chapter, the advertiser or seller must provide, within a maximum period of one month, proof of the accuracy of the factual data in relation to them.
If the evidence required under paragraph 1^er shall not be made or deemed to be insufficient, the Minister or the officer charged to that effect may consider advertising or commercial practice as contrary to the provisions of this chapter.
§ 2. The advertiser or seller are also required to provide such evidence when a termination action is brought by:
1° the Minister and, where applicable, the competent minister referred to in section 98, § 2;
2° the other persons referred to in Article 98, § 1^erprovided that, in the light of the legitimate interests of the advertiser or seller and any other party to the proceedings, the President of the Commercial Court considers that such a requirement is appropriate in the circumstances of the case.
If the evidence required under paragraph 1^er are not made or deemed insufficient, the President of the Commercial Court may consider the factual data as inaccurate. "
Art. 31. Section 94/14, as follows, is inserted in the same Act:
"Art. 94/14. § 1^er. Contracts and conditions for the provision of products and services to consumers may be interpreted in particular on the basis of advertising messages and business practices in direct contact with them.
§ 2. When a contract has been concluded following an unfair commercial practice referred to in articles 94/8, 12°, 15° and 16° and 94/11, 1°, 2° and 7°, the consumer may, within a reasonable period of time from the time when he was aware of or should have known of his existence, require the reimbursement of the amounts paid, without restitution of the product delivered or the service provided.
When a contract has been concluded following an unfair commercial practice referred to in articles 94/5 to 94/7, 94/8, 1° to 11°, 13° and 14°, 17° to 22°, 94/9 to 94/10 and 94/11, 3° to 6°, the judge may, without prejudice to the sanctions of common law, order the refund to the consumer of the amounts he paid without restitution by the consumer of the supplied product or service. "
Art. 32. Section 94/15, as follows, is inserted in the same Act:
"Art. 94/15. § 1^er. Without prejudice to the powers conferred upon him under another legal provision, the King may, by order deliberately in the Council of Ministers, for the products or services or categories of products or services that He determines:
1° prohibit or restrict advertising, with a view to ensuring greater protection of consumer and environmental safety;
2° to determine the minimum advertising mentions, with a view to ensuring better consumer information.
§ 2. Before proposing an order under § 1^er, the Minister shall consult with the Consumer Council and establish the time limit for the notice to be given. After this period, the notice is no longer required. "
Art. 33. Article 94/16, as follows, is inserted in the same law:
"Art. 94/16. § 1^er. The King creates, within the Consumer Council and the conditions it determines, a commission to issue opinions and recommendations on advertising and labelling relating to environmental effects and on the development of a code of ecological advertising.
§ 2. After notice of the commission and the joint initiative of the Minister and Minister with the environment in his or her powers, the King may impose an ecological advertising code.
§ 3. The King determines the composition of the commission. It must include at least two representatives of environmental protection associations. "
Art. 34. Article 94/17, as follows, is inserted in the same law:
"Art. 94/17. § 1^er. The use of automated call systems without human intervention and fax machines for personalized advertising purposes is prohibited, without the prior, free, specific and informed consent of the recipient of the messages. The King may, by deliberate decree in the Council of Ministers, extend this prohibition to other communication techniques, taking into account their evolution.
Derogation from paragraph 1^er, and without prejudice to § 4, paragraph 2, any issuer shall be exempt from soliciting from legal persons the prior consent to receive advertisements by means of the techniques mentioned in paragraph 1^er or determined under the latter.
Without prejudice to section 14 of the Act of 11 March 2003 on certain legal aspects of the services of the information society, personalized advertising, broadcast by other techniques than those mentioned in paragraph 1^er or determined pursuant to it may only be determined in the absence of a manifest opposition from the recipient, a natural or legal person. No fee may be charged to the recipient because of the exercise of his right of opposition.
§ 2. When sending any advertisement using a communication technique referred to in § 1^erParagraph 1^er, or determined pursuant to it, the issuer provides clear and understandable information regarding the right to object, for the future, to receive advertisements.
§ 3. When sending any advertisement using a communication technique referred to in § 1^er, paragraph 3, it is forbidden to conceal the identity of the seller on whose behalf the communication is made.
§ 4. The burden of proof of the solicited character of the advertisement sent by means of a communication technique mentioned in § 1^erParagraph 1^er, or determined pursuant to the message, is the responsibility of the message transmitter.
Any person may notify a specified issuer directly, without charge or reason, of his or her desire to no longer receive advertisements sent by means of a technique referred to in § 1^erParagraph 1^er. "
Art. 35. Section 95, paragraph 2, of the Act is replaced by the following paragraph:
"It may order the prohibition of advertising referred to in section 94/2 and the prohibition of unfair business practices referred to in sections 94/5 to 94/11, where they have not yet been brought to the public or started, but that their publication or implementation is imminent. "
Art. 36. An article 97bis, as follows, is inserted in the same law:
"Art. 97bis. Where the offence relates to an advertisement, the termination action may not be brought by the head of breach of the provisions of sections 94/1, 94/2 and 94/5, unless the advertiser of the advertisement incriminated.
However, when the advertiser is not domiciled in Belgium and has not designated a responsible person with his or her home in Belgium, the action on termination may also be taken on the charge of:
- the publisher of written advertising or the producer of audiovisual advertising;
- the printer or director, if the publisher or producer does not have their domicile in Belgium and did not designate a responsible person with his domicile in Belgium;
- the distributor as well as any person who knowingly contributes to the effect of advertising, if the printer or director do not have their domicile in Belgium and did not designate a responsible person with his domicile in Belgium. "
Art. 37. In section 98 of the Act, as amended by the Acts of 14 July 1994 and 7 December 1998, the following amendments are made:
1° in § 1^er, point 2, the words "in section 93" are replaced by the words "in section 94/3";
2° in § 1^er, point 3, the words "except where the application relates to an act referred to in section 94 of this Act" are deleted;
3° in § 1^er, point 4, the words "in section 93" are replaced by the words "in section 94/3";
4° in § 2, the words "Articles 93" are replaced by the words "Articles 94/3".
Art. 38. In section 101, paragraph 1^erthe words "without prejudice to section 24" are replaced by the words "without prejudice to section 94/13".
Art. 39. Section 102 of the Act, as amended by the Acts of 25 May 1999, 26 June 2000 and 24 August 2005, are amended as follows:
1° point 3 is replaced by the following provision:
“3. articles 37, 39 and 39 bis relating to documents on sales of goods and services and orders pursuant to articles 37 and 39; »;
2° it is inserted instead of point 6bis, which becomes point 6ter, a new 6bis point written as follows:
"6bis. of Article 76 on forced purchases; »;
3° point 8 is replaced by the following provision:
8. Articles 94/5, §§ 1^er and 3, 94/8 and 94/11, relating to unfair trade practices against consumers, with the exception of articles 94/8, 12°, 15° and 16°, 94/11, 1°, 2° and 7°. "
Art. 40. In section 103 of the Act, as amended by the Acts of 25 May 1999 and 26 June 2000, the words "sections 30, 93 and 97" are replaced by the words "sections 30, 94/3 and 97".
Art. 41. In section 105 of the same law, as amended by the law of 26 June 2000, the words "in section 85 prohibiting offers for sale and sales that misrepresent humanitarian or nature philanthropic actions to awaken the generosity of the consumer" are replaced by the words "in articles 94/8, 12°, 15° and 16°, 94/11, 1°, 2° and 7°, relating to commercial practices".
Art. 42. An article 122bis, as follows, is inserted in the same law:
"Art. 122bis. - The King may coordinate the provisions of this Act and the provisions that would have expressly or implicitly amended them at the time the coordination is established.
To this end, He may:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology, without prejudice to the principles enshrined in these provisions.
The coordination will bear the title determined by the King. "
Art. 43. The Act repeals:
1° Chapter IV, Advertising, amended by the laws of 25 May 1999, 11 March 2003 and 24 August 2005, including articles 22 to 29bis;
2° Article 85.
Art. 44. This Act comes into force on the first day of the sixth month following the one in which it was published in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 5 June 2007.
ALBERT
By the King:
Minister of Consumer Protection,
Ms. F. VAN DEN BOSSCHE
Minister of Economy,
Mr. VERWILGHEN
Minister of Average Class,
Mrs. S. LARUELLE
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Documents of the House of Representatives:
51-2983 - 2006/2007:
Number 1: Bill.
Numbers 2 and 3: Amendments.
Number 4: Report.
No. 5: Text adopted by the commission.
No. 6: Text adopted in plenary and transmitted to the Senate.
Full report: 12 April 2007.
Documents of the Senate:
3-2407 - 2006/2007:
Number 1: Project referred to by the Senate.
Number two: Report.
No. 3: Decision not to amend.
Annales du Senate: April 19, 2007.