The essence of Economic Law in Belgium
In his book “The Encyclopaedia of Law”, professor Jules Stuyck talks about the different aspects the
economic law in Belgium. It shows the different economic institutions and their purpose as well as
the numerous amount of different economic operators.
The economic operators
In order to become a merchant, a person has to possess the legal capacity to do so. For instance,
minors cannot legally act on their own behalf. This results in the fact that commercial acts by a minor
are considered as civil acts according to article 6 of the Commercial Code. In addition, people who
are performing certain tasks of general interest cannot become merchants either.
Commercial activity can also be forbidden when a person has been convicted of various criminal acts
as stated by Royal Decree No 22 .This prohibition can also take place when a board member is at
fault for his personal bankruptcy or that of his company.
Because everybody with legal capacity can become a merchant, it is important to note that a married
person can be a merchant without permission of the spouse but the spouse can oppose this in court
when he feels that his or his children’s interests are at risk. The merchant can have a marriage
settlement which can be modified before a notary, otherwise the separation of goods applies.
When a non-EU citizen wants to exercise a commercial activity on their own, they will need a
professional card. However, certain categories of foreigners can be exempt from this obligation by
the King. Working without the card when it is required, is a criminal offence. The council for
Economic Investigation of Aliens can also revoke the card or close the business of the foreigner in
certain situations.
Not only a natural person can exercise a commercial activity, a company can do this as well. Since
2001 a completely new Companies Code is used which contains rules on all different sorts of
companies. Partnerships for example can have either a civil or a commercial character just like any
other company, this character is determined by the nature of the goal of the partnership. Civil and
commercial partnerships follow largely the same rules but a big difference is the automatic solidarity
between commercial partnerships while in a civil partnership the debts of partners are separable.
Furthermore, the Code recognizes two special partnerships, the temporary partnership for a
determined amount of ventures and a sleeping partnership with one working and one sleeping
partner.
Two other forms of companies can be found in Article 201 Companies Code, both with a reduced
legal personality. The first one is the firm in which partners are personally responsible for the debts
of the firm. Secondly, there is the commandite partnership with both working and sleeping partners.
The latter have a limited liability while the liability of the former is unlimited.
Another type of company is the cooperative company in which new partners can easily be
introduced. The liability is unlimited by default,although the company can opt for limited liability.
Lastly there are the public limited and private limited companies. Both have a full legal personality
and are similarly organised for the most part. Both must have a minimum capital and their liability is
limited to their contribution. The differences lie in the transferability of shares which is easy for
public limited companies who can also offer it on the stock exchange. Private limited companies can
only transfer shares to a limited group and management can be in the hands of one director. One
final difference is that a private limited company can also be created by one person in order to limit
his liability.
The economic institutions
While there are still private bodies with to power to control markets in the Netherlands or France, in
Belgium those guilds have been set aside by the Décret d’Allarde. However, there are still
professional organizations who try to preserve the interests of the sector and their members. These
organizations, which play an important role in Belgium, are also part of inter-professional
associations while smaller undertakings have their own inter-professional organizations.
In larger cities there is also a Chamber of Commerce. This inter-professional association focuses on
the socio-economic growth of its region. They also act as an intermediary between authorities and
businesses, collaborate with the Employment office and act as representative for the industry.
Another type of professional organizations are the Regional Development Companies which are
responsible for all the aspects of the economic activity in their region.
In addition there are professional and inter-professional advisory committees of which have to be
consulted by authorities before making decisions in certain matters. Committees that have an
interest in the matter at hand will give their opinion.
At first the most imperative socio-economic committees were the Central Economic Council and the
National Labour Council, both acting on a federal level. Later 3 new committees were created at a
regional level, one for each region.
Next are the commercial courts, which are different from civil courts because of the distinction
between civil and commercial law. They settle legal disputes between merchants, between
shareholders and insolvency. In a dispute between a merchant and a non-merchant, the nonmerchant can chose to take the dispute to either the Court of First Appeal or the Commercial Court.
The appeal procedure takes place in the Civil Chamber of the Court of Appeal where there is no
distinction between commercial and civil cases.
Lastly there is the commercial arbitration which is organised by CEPANI. It is an independent nonprofit organization that was created by the ICC. If a party is in need of arbitration by CEPANI, they
have to send a request to the secretariat. They contact the defendant who has to reply within a
month. Arbitration can only take place when there is an arbitration agreement, although when such
an agreement is present, arbitration will take place whether the defendant replies or not.
It is up to the parties to choose whether the arbitrage is done by one arbitrator or a jury of three
arbitrators. If they opt for one arbitrator, they can select one by mutual agreement within thirty
days, otherwise one will be appointed by the President or the Committee of CEPANI. If they opt for
three arbitrators, both parties can chose one and the President or the Committee selects the third
one.
Before the start of the case, the arbitrator takes note of the statements, the issues at hand and the
circumstances of the case and writes it down in an instrument. Afterwards, the arbitrator has to
verify all information and facts pertaining to the case. The award has to be presented within four
months after the signing of the instrument. The award has to be executed by the parties without
postponement and there is no appeal possible since the award is final. The arbitration procedure has
some advantages over judicial procedure. Firstly the dispute can be handled quicker, secondly the
confidentiality is protected, thirdly people with knowledge of the matter can be selected as
arbitrators and lastly the language for the procedure can be agreed upon by the parties.