A law of 4 May 2023 introduced a new book relating to consumer debts into the Belgian Economic Code.
The law intends to protect consumers having defaulted on payments towards a company, thus in a B2C context.
For companies, this new law means that they will have to comply with new conditions if they want to claim payment from a consumer for amounts owed to them, including fees, interests and/or a late payment compensation.
In essence, the new legislation introduces the following elements:
- The consumer has the right to a free first letter of default
The company must send the defaulting consumer a first letter of default free of charge. This reminder is sent by e-mail or post.
Fees, interest and/or compensation on the unpaid invoice can only be claimed after 14 days following this first reminder with retroactive effect to the day after delivery. It should be noted that this 14-day period does not start until after the third working day in the case of delivery by post and from the following day in the case of delivery by e-mail.
If the contract relates to the regular delivery of goods or services (e.g. a subscription), only three reminders per year are free of charge. The cost of additional reminders in this case may not exceed €7.50, plus the postal charges applicable in the respective country at the time of dispatch.
- The first payment reminder must contain several mandatory details
The new law provides for a number of details that must be included in this first reminder, including :
- The name and enterprise number of the creditor;
- The outstanding amount and the amount of the indemnity which shall be demanded in the event of non-payment within fourteen days;
- The exact description of the product or service through which the debt arose; and
- The period within which the debt must be paid before fees, interest and/or compensation are claimed (at least 14 days).
The company shall, at the consumer's request, promptly provide all supporting documents relating to the debt and any information on how to contest against the debt.
- The compensation due in the event of late payment is limited
If the consumer does not comply with and do not pay the invoice despite the free letter of default, the company may demand interest on late payment and/or compensation from the consumer, provided that such interest is expressly provided for in a contract or in general terms and conditions that may be relied upon against the consumer.
However, no payments other than the following may be required from the consumer:
- Default interest, which may not exceed in accordance with Article 5, paragraph 2 of the Act of 2 August 2002 on combating late payment in commercial transactions. This interest shall be calculated on the amount still to be paid; and/or
- A lump sum compensation, if expressly provided for, not to exceed the following amounts:
- 20 euros if the outstanding amount is 150 euros or less;
- 30 euros plus 10% of the amount owed on the tranche between 150.01 and 500 euros if the outstanding amount is between 150.01 and 500 euros;
- 65 euros plus 5% of the amount owed for the tranche over 500 euros up to a maximum of 2000 euros if the amount owed is over 500 euros.
If the contract or the company‘s general terms and conditions provide for interest on late payement and/or compensation in excess of these legal maximum amounts, the company may not claim these interest on late payement and/or compensation.
In addition, if the required information is missing in the first reminder, the company commits an offence that can be subject to a criminal fine that can go up to 80,000 euros or 4% of the total annual turnover of the last financial year, whichever is higher.
The burden of proof for the correct handling of the recovery lies with the companies. Furthermore, no contractual derogation from these provisions is possible. Any clause deviating from these formalities is prohibited and void.
This new legislation will first apply to all contracts concluded with consumers from 1 September 2023. Then, from 1 December 2023, the law will apply to all debts due and unpaid of consumers.
If you have any questions about this new legislation, please do not hesitate to contact us.