The New General Belgian Freight Forwarding Terms and Conditions 2024 (hereinafter: "ABEV 2024") have been updated to better align with the current legal and economic situation. This revision aims to maintain a reasonable balance between the rights and obligations of both the client and the freight forwarder.
Customs and Fiscal Representation:
Due to the wording of Article 1.1, first paragraph, of ABEV 2024, the definition of 'Freight Forwarder' in Article 1.2, and the classification of the 'Commission Agent-Freight Forwarder' in Article 1.3, there may be potential discussions about whether customs representatives can still rely on ABEV 2024. In the past, case law and doctrine generally accepted the application of the ABEV 2005 in contracts concerning customs representation. FORWARD BELGIUM recommends that customs representatives use the FORWARD standard contract for customs representation, which explicitly incorporates the applicability of the ABEV conditions.
Doctrine of Imprévision:
Article 3.5.2 of ABEV 2024 provides its own interpretation of the so-called "imprévision" doctrine with a so-called 'hardship clause' that is broader than the new legislation in the Civil Code. This clause allows for the renegotiation of contracts under broader circumstances than those legally provided. Article 6.1.2 a of ABEV 2024 excludes the freight forwarder's liability for “gross negligence.” This raises questions about the compatibility of this article with Article VI.91/5, 6° of the Economic Law Code, which generally prohibits such clauses unless the necessity for them is demonstrated by the party imposing them. The legality of this provision will undoubtedly be a subject of discussion in Belgian courts.
Termination:
ABEV 2024 introduces a new clause regarding the termination of the contract between the freight forwarder and the client. Termination can only occur with the freight forwarder's consent. Compensation upon termination is limited to costs already incurred and services rendered, without compensation for lost profits.
Cumulative Liability and Quasi-Immunity:
As of 01/01/2025, the new Civil Code abolishes the prohibition of cumulative liability and the quasi-immunity of auxiliary persons (formerly “agents of execution”) in Book 6. ABEV 2024 responds by explicitly rejecting extra-contractual liability and allowing the freight forwarder to invoke the release clauses agreed with their auxiliary persons in relation to their client.
Limitation of Liability:
ABEV 2024 limits liability to an amount per kilogram, expressed in SDR, with a maximum of 32,500 SDR per claim. The limitation that a commission-agent carrier can invoke is also more detailed. The liability of the commission-agent carrier for delay damage is limited to the freight costs.
Lien and Pledge:
Article 7 of ABEV 2024 conventionally extends the freight forwarder's right of retention to all goods entrusted for the performance of the contract, as well as the funds and documents representing those goods. The requirement for the freight forwarder to act in good faith, as stipulated by case law, is not explicitly imposed by ABEV 2024.
Statute of Limitations:
ABEV 2024 extends the statute of limitations from 6 months to 9 months. The possibility for the freight forwarder to approach not only the exclusively competent court but also other courts remains unchanged. This may cause confusion and could potentially conflict with the Economic Law Code. This exclusive right for the freight forwarder to approach other courts, and not the client, creates a legal imbalance between the rights and obligations of the parties, which under Article VI.91/3 of the Economic Law Code may be considered unlawful and thus void.
Customs Liabilities:
The client's guarantee for customs duties is further extended. The client must, upon the freight forwarder’s first written request, provide an irrevocable and unconditional financial guarantee covering the principal amount, interest, and costs.
Client’s Liability:
The client’s liabilities towards the freight forwarder are expanded. The freight forwarder can now request a guarantee for all damage and costs they expect to incur from the client, not only for customs and government claims but also for ordinary damage claims. This protects the freight forwarder from the risk of the client's insolvency.
Want to know more?
This was a summary of the main changes introduced by ABEV 2024. For specific questions regarding ABEV 2024, you may contact one of our attorneys John Wolfs.
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