On 27 February 2015, the Brussels Court of Appeal (the "Court") delivered a judgment in which it applies the rules on legitimate expectations, on unfair commercial practices and on the evidential value of invoices to a dispute between Carrefour Belgium SA ("Carrefour Belgium") and one of its suppliers, New Foundation SA ("New Foundation") (Brussels Court of Appeal, 27 February 2015, New Foundation SA v. Carrefour Belgium SA, 2010/AR/582).
First, the Court held that merely being part of the suppliers whose offers are solicited by a company of an international group of companies, or by an agent entrusted with the negotiation of contracts for the companies of that group, does not create an acquired right to the conclusion of these contracts in favour of the potential commercial partner. Neither does it give, therefore, a false appearance that could constitute a breach of the potential partner's legitimate expectations with regard to its future commercial relations with the companies of the group.
Second, the Court held that the act by which a seller copies, even slavishly, the offer of services or products of another economic operator is not contrary to fair commercial practices, unless the seller either: (i) disregards an intellectual property right; or (ii) makes this offer in circumstances contrary to the requirement of fair commercial practices. As a consequence, the seller who directly benefits from significant efforts or investments in an economically valuable creation of another vendor, without making a creative effort himself, does not necessarily commit an act that is contrary to fair commercial practices. However, the judge may consider that these practices constitute a fault within the meaning of Article 1382 of the Civil Code.
Third, the Court decided that an invoice cannot constitute proof of a contract, in accordance with Article 25, §2 of the Commercial Code, when the invoice is established in order to indemnify a party for damages resulting from a contractual fault.
The dispute at issue concerned New Foundation, a company specialised in the conception and production of ladies' underwear, which sold its products under private label to several large retailers, including Carrefour Belgium. The commercial relations between New Foundation and Carrefour Belgium, which had been based on annual "commercial agreements", came to an end in 2007. New Foundation requested damages before the Brussels Commercial Court, on the grounds of
- an alleged breach of its legitimate expectation to continue activities with Carrefour Belgium and/or develop these activities with companies of the Carrefour group beyond Belgian borders;
- the behaviour of Carrefour Belgium which allegedly constituted unfair commercial practices, in that Carrefour Belgium had requested another supplier to copy slavishly three models of underwear created by New Foundation's stylists, while New Foundation's stocked items were not ordered; and
- an alleged violation of the conditions of their commercial agreement with regard to the delisting of stocked items, according to which Carrefour Belgium had the obligation either to give six months' notice before delisting or undertake an advertising operation to sell off New Foundation's stock.
The Brussels Commercial Court only granted the claims based on the third ground and exclusively with respect to the stock for summer 2007, for an amount of EUR 7,500. New Foundation appealed against the ruling, requesting the Court to grant all of its claims.
Regarding the claims based on the first ground, the Court held that, because the parties were not bound by a contract of indefinite duration imposing a mandatory volume of orders, it is for New Foundation to demonstrate that Carrefour Belgium misled it into believing that the latter had committed itself, directly or indirectly, to pursue or even develop commercial relations in the future. The Court ruled that New Foundation had not provided any such proof. First, volume of orders had been falling consistently year by year, while delisting of the claimant's products increased. Second, the efforts made by Carrefour Belgium to open potential future prospects could not give rise to legitimate expectations that these opportunities would materialise. Indeed, according to the Court, the freedom to conclude contracts implies the freedom of negotiating with several parties simultaneously in order to select only the most advantageous contract.
The second ground of the claims, based on alleged unfair commercial practices, was also dismissed by the Court, following the reasoning reproduced above. The Court noted three facts which justified this position: (i) New Foundation itself had claimed that a third party supplier was responsible for slavishly copying the models; (ii) the claim that this copying was done at the request of Carrefour Belgium was not supported by any evidence in the case file; and (iii) the disputed items were, upon examination by the Court, classical models that numerous brands propose, subject to a few minor nuances.
Finally, the Court only partly granted the claims based on the third ground. It noted that Article 25, paragraph 2 of the Code of Commerce provides for a specific mode of proof for commercial sales between merchants (kooplieden/commerçants): the acceptance of an invoice constitutes proof of the contract and its conditions. However, because the invoice is deemed to be the confirmation of a contract, this rule cannot apply when the invoice is established in order to indemnify a party for damages resulting from a contractual fault. This was the case for the invoice produced by New Foundation, where the damages resulted from Carrefour Belgium's violation of its contractual obligation either to give six months' delisting notice or undertake an advertising operation. Therefore, Carrefour Belgium could not be deemed to have accepted the invoice.
Moreover, the Court held that Carrefour Belgium was partially right in saying that the stock mentioned in the invoice was excessive. The Court therefore ordered Carrefour Belgium to pay limited damages to New Foundation in the amount of EUR 22,779.38.
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