The judgment of 26 February 2026
The Court of Justice of the European Union has held that Belgium failed to fulfil its obligations under the directive on services in the internal market, in its provisions on the freedom to provide services and on professional guarantees. The guarantee regime of the Breyne Act is targeted.
The provision at issue is article 12 of the Breyne Act (case C-824/24), which organises the financial guarantee owed by the vendor or contractor.
The procedure had been under way for some time. The European Commission questioned Belgium as early as April 2022, then opened infringement proceedings in February 2023.
What the Court criticises
The reasoning is worth following, as it sheds light on the possible reforms. It bears on the difference in treatment between firms.
The Court accepts the basis of the protection. Construction may entail real financial risk for consumers on the contractor's bankruptcy, and the act legitimately seeks to address it.
It contests the coherence of the means. The difference between a completion guarantee covering the whole, required of non-approved parties, and security of five per cent of the building price, required of approved contractors, does not coherently match the objective of protection.
The paradox is explicit: the regime results in better protection for a purchaser contracting with a non-approved contractor than for one contracting with an approved contractor.
The Court adds that other mechanisms of the act already protect, notably the progressive transfer of ownership and staged payment for the works.
Finally, the obstacle is concrete for foreign operators, a developer established in another member state being unable to obtain approval without associating with a Belgian contractor.
What remains in force today
An essential point for anyone concluding a contract now. The act remains applicable until it is amended.
The current regime remains in force pending amendment of the act. The judgment records a failure to fulfil obligations; it does not repeal the text.
The act's other protections are unaffected. The deposit cap, the prohibition on payment before conclusion, the double acceptance regime and the control of price revision continue to apply, as the article on payments, guarantees and security explains.
The developer's ten-year liability under the Breyne Act is likewise unaffected, that point belonging to civil law rather than to the guarantee regime.
| Moving point | Position today | What to do |
|---|---|---|
| Financial guarantee under the Breyne Act | Regime held contrary to European law | Follow the announced reform |
| Rest of the Breyne Act | In force and applicable | Apply the text as it stands |
| Recodification of the Civil Code | Progressive, numbering evolving | Check the references cited |
| Compulsory insurance | Distinct regimes by profession | Check the certificates |
Reform scenarios
Three hypotheses circulate, with different consequences. They concern the form the reform will take.
Harmonising the security for all, approved and non-approved alike, appears the most likely outcome according to several practitioners. It would remove the discrimination by aligning on the lighter regime.
Extending the completion guarantee to all, which would equally remove the discrimination but align upwards, at increased cost for approved contractors.
An entirely different approach, the Court having noted that other mechanisms already protect the purchaser.
The choice is not neutral for project structuring, particularly for operations involving foreign parties.
A reform within a reform
A contextual element that may accelerate matters. It concerns the pressure of European deadlines.
The Belgian Civil Code is being progressively recodified. The legislature has provided, in the book on specific contracts, for the possibility of reworking the Breyne Act and incorporating it there.
The judgment therefore offers an opportunity for redesign rather than piecemeal correction, which makes timing and content hard to anticipate.
The other moving points
Three developments to follow, less spectacular but real. They touch recodification, insurance and case law.
The recodification of the Civil Code. The book on obligations entered into force in January 2023, with effects on the subcontractor's direct action, covered in the article on subcontracting. References and numbering on liability must be checked against the law in force.
The compulsory insurance regimes, whose scope and arrangements evolve, covered in the article on compulsory insurance.
Verification duties on social and tax debts, whose thresholds are regularly amended.
How to monitor
Four principles, for proportionate effort. They organise useful rather than exhaustive monitoring.
Check before concluding any contract falling under the Breyne Act, as long as the reform has not occurred.
Do not anticipate the reform in contracts. A clause based on an unknown future regime is a risk, not a protection.
Follow publications from the professional federations, which are preparing alternatives and are in contact with the ministries concerned.
Distinguish what has been judged from what has been amended. A judgment of failure to fulfil obligations does not immediately change the applicable text.
What this means for a professional
Three rules.
Inform clients of the instability of the guarantee regime, without alarming them about the other protections, which are not called into question.
Document the date of conclusion, the applicable regime being that in force at that moment.
Recheck quarterly, the reform being capable of arriving without long notice.
This article reflects developments known at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace consulting the texts in force.