{"id":8962,"date":"2022-12-15T09:01:00","date_gmt":"2022-12-15T07:01:00","guid":{"rendered":"https:\/\/reyns-advocaten.be\/?p=911"},"modified":"2026-06-26T11:29:39","modified_gmt":"2026-06-26T09:29:39","slug":"informatieverplichting-bij-commerciele-samenwerkingsovereenkomsten-2","status":"publish","type":"post","link":"https:\/\/reyns-advocaten.be\/en\/informatieverplichting-bij-commerciele-samenwerkingsovereenkomsten-2\/","title":{"rendered":"The pre-contractual duty to provide information in commercial cooperation agreements"},"content":{"rendered":"\n
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Written by<\/strong><\/p>\n

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Tom Cielen<\/a><\/p>\n <\/div>\n

Expertise<\/strong><\/p>\n

\n Corporate<\/a>\n <\/div>\n

Publication<\/strong><\/p>\n

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15 December 2022<\/p>\n <\/div>\n <\/div>\n<\/div>\n<\/div>\n\n\n\n

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Belgian legislation has, since 2005, provided for a mandatory information protocol that must be followed when parties wish to enter into a so-called \u201ccommercial cooperation agreement\u201d.<\/p>\n\n\n\n

We are surprised to find how little known this prior information procedure is, even though disregarding the pre-contractual information obligation has far-reaching consequences …<\/p>\n\n\n\n

In this news blog, we explain the pre-contractual information obligation and inform you of the possible consequences of failing to comply with it.<\/p>\n\n\n\n

Scope of application<\/strong><\/h2>\n\n\n\n

The information obligation is primarily intended to protect the economically weaker party by providing that party, sufficiently in advance, with the necessary information about the scope and content of its commitment. When referring to \u201ccommercial cooperation agreements\u201d, one thinks first and foremost of franchise agreements, but concession and distribution agreements, and even less obvious agreements such as commercial agency and brokerage agreements (with the exception of the banking and insurance sectors), may also fall within this scope.\u00a0<\/p>\n\n\n\n

The term itself is defined in the CEL (Code of Economic Law) in very general terms: \u201can agreement concluded between several persons, whereby one person grants the other the right to use a commercial formula in the sale of products or the provision of services\u201d (Art. X.26 CEL)<\/em>. Elements such as a common signboard, a common trade name, a transfer of know-how and\/or commercial or technical assistance are considered decisive.<\/p>\n\n\n\n

What does the information obligation entail?<\/strong><\/h2>\n\n\n\n

Put concretely and briefly, no later than one month before the planned signing of the contract, the prospective agent\/distributor\/concessionaire must be provided with a draft of the agreement text, accompanied by a separate document consisting of two parts. The first part must inform the future partner at a glance about the main contractual provisions (e.g. whether or not it has an intuitu personae character, specific obligations, sanctions, term and notice modalities, franchise fee, non-compete clause, etc.). The other part contains information that must enable the future partner to properly assess the commitment (identity and legal form of the provider, accounting information about both the provider and the content of the cooperation formula, market share, overview of costs and necessary investments, etc.). The statements and information to be included in this separate information document are listed exhaustively and in detail in Art. X.28 CEL.<\/p>\n\n\n\n

Please note: this information obligation also applies when renewing a cooperation agreement concluded for a fixed term, when entering into a new cooperation agreement between the same parties, as well as when amending an existing cooperation agreement.<\/p>\n\n\n\n

In these cases as well, no later than one month before the new agreement takes effect, a draft text must be provided, likewise accompanied by a separate information document (which may be somewhat simpler and should mainly highlight the amendments or new elements) (Art. X.29 CEL).<\/p>\n\n\n\n

What does the information obligation entail?<\/strong><\/h2>\n\n\n\n

The sanction for failure to comply with these formalities is the nullity of the agreement. This nullity may only be invoked by the legal successor (i.e. the economically weaker party) and this up to 2 years after signing the agreement. The parties (read: the legal service provider) cannot evade this by having the legal successor certify that all formalities under the WER were complied with. Such an implicit waiver of the right to invoke nullity can take place no earlier than one month after the conclusion of the contract and must, moreover, state the reasons for doing so\u00a0 (Art. X.30 in fine WER).<\/p>\n\n\n\n

Entire nullity<\/strong><\/h3>\n\n\n\n

The specific consequences for the parties of invoking nullity are open to debate. In any event, the Court of Cassation has already held that the nullity of the agreement in its entirety implies that the parties must be restored to a situation as if no agreement had ever been concluded. In principle, the nullity has retroactive effect to the time the contract was entered into (ex tunc). In principle, the parties must therefore return all performances\/remuneration received: either in kind, or by monetary equivalent if physical restitution proves impossible. This restoration must take place as neutrally as possible, so there may likewise be no enrichment (without cause) for either of the parties.\u00a0<\/p>\n\n\n\n

In the case of continuing contracts with successive performances, such restitution is problematic. When the obligations under a continuing contract are divisible over time, non-performance in the future has no effect whatsoever on performances already rendered, so these do not have to be returned retroactively. This is different for indivisible obligations, where this must be done in order to restore the balance between the performances. Certain performances were then rendered in the past with a view to a counter-performance still to be received in the future. This mainly brings to mind a lump-sum amount paid as an entry fee, loan costs, termination indemnities of all kinds (commercial leases, supply contracts, personnel, ..), investments that have not yet been depreciated, \u2026<\/p>\n\n\n\n

Partial nullity<\/strong><\/h3>\n\n\n\n

If the 1-month \u2018cooling-off\u2019 period was respected and the information document was provided but proves to be incomplete, the acquirer may invoke the nullity of the relevant provisions.\u00a0<\/p>\n\n\n\n

***<\/p>\n\n\n\n

Bent u van plan een commerci\u00eble samenwerkingsovereenkomst aan te gaan of voelt u zich juist benadeeld in dergelijke overeenkomst en zoekt u een uitweg, laat u dan voldoende adviseren over de precontractuele informatieverplichtingen. Onze experten van de cel ondernemingsrecht hebben een ruime expertise in deze materie. Aarzel niet contact met ons op te nemen.<\/a><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n\n

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Belgian legislation has, since 2005, provided for a mandatory information protocol that must be followed when parties wish to enter into a so-called \u201ccommercial cooperation agreement\u201d. We are surprised to find how little known this prior information procedure is, even though disregarding the pre-contractual information obligation has far-reaching consequences … In this news blog, we […]<\/p>\n","protected":false},"author":3,"featured_media":913,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"footnotes":""},"categories":[25],"tags":[],"class_list":["post-8962","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-nieuws"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t