Are you an entrepreneur whose business sometimes explores or even crosses national borders? Then you have undoubtedly already asked yourself the following question: in which languages should I draw up my general terms and conditions?
If you do business with consumers, then the answer to this question is very important, because if you do not pay sufficient attention to it, your general terms and conditions might not apply at all… Right?
Not a strict rule
The rules regarding which language you have to use in your general terms and conditions are not as strict as you might think.
On the European level, nothing is explicitly regulated about this, only that they must be drawn up in a clear and understandable language for consumers. Member States can make exceptions to this themselves, but most countries have not really made use of this. One Member State that has made use of this possibility, for instance, is Italy. Indeed, Italian consumer legislation explicitly states that all information intended for consumers must be formulated in Italian.
In Belgium, language legislation does not, in principle, apply to general terms and conditions. Consequently, unlike for other documents such as invoices, there is no strict regulation on the use of language. Only that the general terms and conditions must be clear and understandable for the other party.
Clear and understandable language
However, this is often where the shoe pinches. The requirement of clear and understandable general terms and conditions means that the conditions must be drawn up in a language that the other party understands.
Do you then have to translate your general terms and conditions into all possible languages that your customers speak? No, fortunately, this requirement does not go that far. That would be an enormous burden on European trade. However, you must ensure that the other party cannot simply ignore the general terms and conditions because he does not understand them.
Therefore, always use simple and clear language in your general terms and conditions and leave out any unnecessary technical jargon.
Hemming and hawing / Consider your options
As an entrepreneur, you will have to consider on a case-by-case basis whether the relevant customer can understand the general terms and conditions. It is therefore best to give this some thought before making a well-considered decision.
If the webshop focuses on Dutch-speaking customers with an entirely Dutch website, it is obviously inadvisable to use German general terms and conditions. Even French can be insufficiently understandable for the Flemish consumer.
However, if you sell more technological products or focus on a younger market, chances are high that English will be a sufficiently understandable language.
So it is best to think about who your target audience is and adjust your general terms and conditions accordingly.
A good rule of thumb is also: if you have used a certain language in the rest of the documentation and in all previous communication, your general terms and conditions should preferably not be drawn up in any other language. So always use the same language in relation to customers.
Combine English with a language clause
In many circumstances, English general terms and conditions will suffice nowadays, as more and more people speak sufficient English. Moreover, English general terms and conditions are particularly useful if you operate in different countries.
However, what can be a useful addition is a clause in which you state that if the other party agrees to the general terms and conditions, he also declares that he has sufficient knowledge of the language of the general terms and conditions. It is best to do this in a series of languages so that the other party can read it in their own language. In that case, it will be much easier to prove that the other party could understand the general terms and conditions.
Different language versions
However, if you want to get closer to your customers, by approaching them in their own language, you can also translate your general terms and conditions.
But what if the different language versions deviate because of an inaccurate translation? For example, if your general terms and conditions are in Dutch, but you have provided a separate French version which, due to an incorrect translation, turns out to be more favourable than your original conditions? Or when a French client invokes the German version because it is more favourable for him than his own French text due to inaccuracies? Thus, working with translations is not that simple.
A possible solution would be to add a clause stating that the original version always prevails over the translated version(s). But such a clause is also not without risk!
Difference between B2C and B2B?
Between companies, the legislator expects more independence and freedom, and therefore no extra protection is imposed.
However, there is much better protection for consumers. In Europe, more or less the same rules apply to contracts with a consumer, and sometimes general terms and conditions in another language can cause problems.
For example, in 2016, a German court ruled that Whatsapp’s general terms and conditions were unfair because they were drafted in English, while Whatsapp’s website and the hyperlink to the terms and conditions were in German.
The problem with the European directives is that the term ‘unfair’ is difficult to define. In theory, it is therefore possible that a certain practice is not a problem in country A, while the court in country B will throw the general terms and conditions in the bin. Although the latter will not happen so quickly and everything ultimately depends on the context. The length and complexity of the terms and conditions and the content itself are always taken into account in the assessment.
In addition to being potentially unfair, a consumer could also argue that he could not take notice of the general terms and conditions because he did not speak the language. And knowledge by your counterparty is a condition for being able to enforce your general terms and conditions.
The Court of Appeal of Ghent has already ruled on this, among other things. For instance, a jurisdiction clause in the Dutch general terms and conditions could not be invoked because the previous communication with the client had never taken place in Dutch. These communications had actually been carried out in French and German. Nowhere could it be proven that the client had knowledge of the Dutch language as well. The Court argued that general terms and conditions drawn up in a language that the addressee does not master, are not opposable. The judge therefore also followed the rule of thumb that we mentioned earlier.
What about invoices?
Until recently, there was a special regulation for invoices in Belgium. According to the Language Decree, an invoice always had to be drawn up in the language of the company, even if the customer was a foreign company. If your place of business was in Flanders, but the invoice was not in Dutch, the judge simply had to declare it null and void.
and void. This led to a somewhat absurd case law in which an Italian company refused to pay the invoices of a Belgian company because the invoice was partly in Italian!
This case ended up before the European Court of Justice, which decided that the Flemish and Belgian rules were contrary to the free movement of goods. On 1 August 2017, the Language Decree was therefore amended and an invoice may now be drawn up in any EU language. It is important to note, however, that this is additional: the initial invoice will therefore still have to be drafted in Dutch!
But for invoices between Belgian companies, the general rule still applies. Translated invoices are not in themselves legally valid. It only concerns a translation of the initial, Dutch invoice.
Conclusion
The choice of the language of the general terms and conditions is in principle free. The only message is: make yourself understood! Make sure that your conditions are clear and understandable. If you are an entrepreneur and you trade in other linguistic area, you should take a look at your customer database and see which language would be best for your general terms and conditions. If you are a truly international business, English seems to be the most obvious choice.
Do you need assistance in determining the appropriate language for your business? Or do you need a correct legal translation of your general terms and conditions? If you have any questions, you can always contact our experts at hallo@dejuristen.be.
Written by Romeo Van Overbeke, Trainee theJurists, Chloë Vanderstraeten, Legal Adviser theJurists, and Kris Seyen, Partner theJurists
