Anyone who hires a service provider and terminates the contract early may sometimes face a hefty termination clause. Is this permissible between businesses, or is such a clause void as an unfair term? On January 13, 2025, the French-speaking Business Court in Brussels ruled that a termination fee of 50 percent of the estimated savings does not create a manifest imbalance and therefore remains valid. A Luxembourg school, which had engaged a Belgian cost consultant on a no-cure-no-pay basis, thus failed in its appeal based on the regulations regarding unlawful B2B clauses.<\/p>\n\n\n\n
A consulting firm, hereinafter referred to as C., provides cost-saving advice to companies. Its revenue model is performance-based: it receives 50 percent of the actual savings achieved, measured over a monitoring and follow-up period of twenty-four or forty-eight months. During the engagement, it invoices advance payments based on estimated savings.<\/p>\n\n\n\n
In 2021, C. signed a \u201cConsulting and Cost Optimization Agreement<\/em>\u201d with G., an international school in Luxembourg with approximately 850 students. The assignment covered five cost categories, including facility management, IT and telecommunications, catering, and utilities. C. prepared a status report for each category, followed by a report outlining specific cost-saving proposals.<\/p>\n\n\n\n After the first two option reports, friction arose. G. felt that the proposed options were not suitable for her situation and wanted to continue working with some of the existing suppliers. C. accused G. of a lack of willingness to invest and of being unresponsive. Ultimately, G. unilaterally terminated the partnership in the fall of 2022.<\/p>\n\n\n\n C. subsequently claimed a termination fee of 258,879.40 euros, based on Article 6 of the agreement. That article provided for a progressive exit fee: 15,000 euros per category prior to the option report (Art. 6.1), thirty percent of the estimated savings after presentation but before acceptance of the option report (Art. 6.2), and fifty percent after acceptance with confirmation of the selected options (Art. 6.3). G. argued that Article 6 was an unlawful clause within the meaning of Article VI.91\/3 of the Code of Economic Law<\/a> and therefore void.<\/p>\n\n\n\n The court rejected the defense of nullity and ruled that Article 6 does not create a manifest imbalance.<\/p>\n\n\n\n The court applied the standard of review set forth in Article VI.91\/3 of the CEL. In doing so, the court exercises only a marginal review, while respecting the freedom of contract and the freedom of business. The review concerns only a legal imbalance, not the economic balance of the agreement, and is conducted in concreto based on the assessment criteria set forth in Article VI.91\/3, \u00a7 2 of the CEL.<\/p>\n\n\n\n Regarding the circumstances surrounding the conclusion of the contract, the court found that there was no economic dependency. G. had approached C. of his own accord; the initiative for the collaboration did not come from C. The agreement was not an accession contract in the strict sense: G. had had a long period to consider the matter, held several preparatory meetings, adjusted the payment terms from eight to thirty days, and even chosen the working language. This indicated an effective opportunity to negotiate.<\/p>\n\n\n\n With regard to the general structure of the contract, the court rejected the argument that C. unilaterally determined whether a cost-saving measure was \u201csuccessful.\u201d After all, Article 2.8 allowed G. to raise well-founded objections within thirty days; in that case, C. was required to revise its report. G. was therefore not at the mercy of C.\u2019s discretion once an option report had been sent. The court also emphasized that C. had been flexible with that deadline.<\/p>\n\n\n\nThe decision<\/h3>\n\n\n\n