Undertaking law is currently strongly inspired by European Union law, whose various provisions and transpositions into national law extend from competition law to consumer law. In this field, the European Court of Justice plays a central role. 'The judge is a key actor', confirms Thirion. 'Generally speaking, rules are somewhat vague and abstract; it is up to the judge to clarify them. This is not tax law where the judge's room for manoeuvre is apparently reduced because of the extreme technicality of legal and regulatory texts. In company law, for example, the concept of corporate interest is often raised, which Boards of Directors are required to respect when taking decisions. More specifically, a company's administrators and manager may only exercise the powers with which they have been invested in the interests of the company (corporate interest). Both what interest are we talking about? That of shareholders, the company, the employees, the public authorities (commune, region, State)? Hence the importance of jurisprudence inundertaking law.'

The four key concepts

After an introductory section on history and general principles, the paper addresses the four key concepts of economic liberalism: the economic actor, the market, the contract and risk. The economic actor is addressed in two sections: the ‘commerçant’ (a concept specific to some continental legal systems, particularly to French and Belgian laws) and the undertaking. The concept of 'commerçant’ and, more broadly of 'commerce', is at the original of numerous legal regulations. This second part asks various questions such as: what is an ‘acte de commerce’? Who can be a ‘commerçant’? Under what conditions? What are the consequences attached to these concepts? Questions which 'we regroup under the slightly pompous term of the 'théorie de la commercialité’'' the authors stress. The concept of 'undertaking' is then addressed, a concept which, in law, gradually replaces the ‘commerçant’.

The third part deals with the market, the organisation and operation of which are analysed through the broad legal principles underlying it (freedom of commerce and industry, right of establishment, free competition) and the most important normative mechanisms (market practices, anti-trust law, price regulation, status of SMEs, organisation of financial markets). The fourth part looks at the contract and related instruments: distribution agreements, bills of exchange, bank credits, payment services and operations, bills. These constitute a wide range of indispensable legal instruments which enable economic actors to work together in a 'secure' environment. In the fifth and final section, risk is addressed through the law relating to undertakings facing financial difficulties. After a short historical introduction, this section looks at the various legal aspects connected with risk by analysing, on the one hand, the recovery of undertakings in difficulty (‘legal reorganisation’ in Belgian law) and, on the other hand, the liquidation of trading undertakings (bankruptcy).

The paper addresses a broad range of the main legal aspects relating to economic activities conducted in Belgium. It is largely targeted at students, but will also be of interest to lawyers specialising in commercial and business law, judges, company lawyers, and professors and researchers in economic law.