Availability of civil claims
Scope for civil claims in Belgium
Civil claims can be brought against any undertaking (defined as any natural or legal persons engaged in a commercial or economic activity) to compensate for damage caused by infringements of Article 101 or 102 TFEU or Articles IV.1 and IV.2 of the Belgian Competition Act 2013.
An action may be issued before the Belgian Court of First Instance or before the Belgian Commercial Court (all actions to date have been started in the Belgian Commercial Court). It is possible to bring an action against a director or employee under tort law where that director or employee has been closely involved in the infringing conduct. To date, no such personal actions have been brought in a competition matter.
A finding by the European Commission or the Belgian Competition Authority that an infringement has occurred is not a pre-condition to a claim for damages being brought, but the Belgian court will likely postpone any ruling on damages if parallel proceedings by the European Commission or Belgian Competition Authority are awaiting determination.
Actions can also be brought against a seller under Book VI. Market Practices and Consumer Protection of the Belgian Economic Law Code, where that seller engaged in a practice that restricts competition to the disadvantage of the interests of other sellers or consumers. A restriction of competition that affects the interests of other sellers or of consumers can be considered to be an unfair trade practice under Book VI. of the Belgian Economic Law Code. Challenging a restriction of competition as an unfair trade practice allows the claimant to make use of the special cease-and-desist procedure (as mentioned in section 15) that exists under Articles XVII.1 et seq. of the Belgian Economic Law Code, which allows the case to be processed in a speedy manner, similar to summary proceedings.
Applicable limitation periods
The limitation period for a damages action based on a non-contractual claim is five years from the day following that on which the claimant becomes aware of the damage and the person liable for that damage. The limitation period is capped and expires 20 years from the date on which the infringement founding the cause of action occurred.
The right to bring a claim under contract lapses after 10 years.
Decisions of a lower court (be it the Court of First Instance or the Commercial Court) can be appealed to the Court of Appeal. This is an appeal de novo, i.e., the appellant may appeal both on issues of fact and on issues of law. If the Court of Appeal finds merit in one or more of the grounds of appeal of the appellant, it must redecide the case in its entirety.
A further appeal from the Court of Appeal to the Supreme Court is possible. Appeals to the Supreme Court are limited to issues of law or complaints that the judgment of the Court of Appeal lacks proper reasoning. In addition, subject to certain conditions, special procedures are available to anyone who was not a party to a case but whose rights have been adversely affected by the judgment (third party opposition), and to a defendant that was absent when the case was heard and judgment was rendered (appeal by way of a rehearing).
Availability of class actions for infringement of competition law and/or damages in Belgium
The Belgian Act on collective redress procedures (the “Act”), which entered into force on September 1, 2014, allows consumers to initiate collective proceedings against undertakings. The procedure can be initiated against any undertaking that has (allegedly) violated: (i) its contractual obligations; and/or (ii) one or more of the specific laws and regulations (and their implementing decrees) expressly listed in the Act (including, but not limited to, competition law and unfair market practices). Apart from breach of contract cases, collective redress procedures are therefore unavailable in certain specific areas of law.
The procedure can be instituted by a group of consumers who have individually suffered damages as a result of a common damage cause. However, consumers who want to file a collective damage claim can only do so through a group representative. Only certain associations, such as certain consumer organizations (e.g., Test-Aankoop), are allowed to act as a group representative. It is important to stress that these collective redress procedures are only available for cases in which the cause of the damage has occurred after September 1, 2014.
After a claim for collective redress has been found admissible, there are two possible systems the court could apply. The first is an “opt-in system,” under which every consumer who wants to join the group must expressly indicate that they want to be part of the group. This system is mandatory for consumers that do not usually reside in Belgium and/or in cases that concern moral or physical damage. In an “opt-out system,” all consumers who suffered the collective damages automatically belong to the group, unless certain consumers indicate they do not want to. Although the group representative can give suggestions about which system would be the most suitable one, in the end it is the court that has discretion to decide which one to choose.
The Act offers two alternative pathways to end the dispute: either party can ask the court to validate an “agreement for collective redress,” i.e., a negotiated settlement, or a “claim for collective redress” can be introduced before the court, which will hear the case and render a final judgment. If the parties are able to reach a settlement, a simplified procedure allows for the settlement to be validated by the court. By agreeing to a settlement, the defendant does not concede its liability or fault. If the parties are not able to reach a settlement, the case can be brought before the court. This will lead to a judgment, at least if the mandatory settlement period set by the court turned out not to be successful. In case there is a settlement, or if the court decided to grant compensation, a liquidator will be appointed by the court. The liquidator will supervise the payment of the settlement or compensation to the relevant consumers, i.e., those consumers included on the list of consumers that can benefit from the compensation agreed to or awarded by the court.
The courts of Brussels have exclusive jurisdiction to handle collective redress cases.
Conduct of proceedings and costs
Burden of proof
In cases where a prior decision of the Belgian Competition Authority or the European Commission has already established a competition law infringement, the claimant need only prove causation and loss in order to recover damages. Belgian courts cannot take decisions running counter to an infringement decision of the European Commission (and decisions by the competition authority will also be held to have high probative value by the Belgian courts). However, decisions of the competition authority or the European Commission finding that no evidence of an infringement exists do not prevent a Belgian court from making a different finding on the basis of evidence that has not been considered by the competition authority or the European Commission.
The burden of proof in establishing that an agreement merits exemption under Article 101(3) TFEU or Article IV(3) of the Belgian Competition Act lies with the party claiming the benefit of the exemption.
The causation that is required between damage and fault will, in principle, be examined on the basis of the doctrine of equivalence of conditions. According to this doctrine, a causal link will be deemed to exist in cases where the damage would not have arisen but for the fault of the defendant.
There is no “rule of thumb” for establishing damages in difficult cases. Very few damage actions have made it to the Belgian courts, and those cases that have been started are either still pending or have been settled out of court, so there is very little guidance in Belgian case law with respect to the calculation of damages in difficult competition cases.
Joint and several liability of cartel participants
There is no specific case law or rule on joint and several liability for damages in respect of private competition litigation in Belgium.
In general, if the infringement and resulting damage is attributable to several persons, such persons will be held liable for damages on a joint and several basis. So, if one defendant can prove that one or more of the other defendants are also liable, there is likely to be a possibility for contribution and indemnity among defendants.
Documents and evidence that can be used by claimants (for example, investigation evidence) and legal privilege
Disclosure (in the sense of the US discovery model, i.e., the legal requirement for a party to proceedings to produce to the opposing parties “all documents relevant to the claim of the other party”) does not exist under Belgian law. However, when there are serious, specific and concurrent reasons to believe that one party possesses a certain document relevant to the dispute, the court may, either at the request of another party or at its own initiative, order the production of this document. This requires the requesting party to be able to precisely identify the document, which is not always straightforward in competition law cases.
As in most civil law countries, documentary evidence is the most important type of evidence in bringing a claim. Generally, in civil cases, written evidence is required for claims exceeding EUR375 and oral evidence may not be admitted to contradict or amplify the written evidence. There is an exception to this rule in commercial cases, which will generally apply in the context of competition litigation. In such commercial cases, a judge can allow witnesses to testify even if there is written evidence to support a claim.
Expert reports are often used in technically complex cases. A report may be ordered by the court at the request of one of the parties or on the initiative of the court. The expert’s role is set out in detail by the court and he can only advise on technical matters. The parties must cooperate with the expert (for example, attend meetings, inform the expert and provide appropriate documents). The final report of the expert is often an important piece of evidence but it is not binding on the court. Nevertheless, in practice, judges usually follow the expert’s conclusions.
In principle, the Belgian Competition Authority may be required by the court to produce documents gathered during its investigation, in order for these to be used in the proceedings.
Pre-action disclosure is not available under Belgian law.
Average length of time from issue of claim to judgment in Belgium
A claim typically takes between one and two years to reach a final judgment at first instance in Belgium, depending on the complexity of the case. An appeal will take two to three years. A further appeal to the Supreme Court will add another year or two to the duration of the proceedings (i.e., a total of up to seven years).
At first instance, an oral hearing before the court takes place after the exchange of briefs and supporting documents by the parties. If a timetable is set at the preliminary hearing (which will happen, unless both parties object), a trial date will be fixed shortly after the claim has been issued. If no timetable has been agreed between the parties or fixed at a preliminary hearing, the parties can request that the court set a trial date. After the oral hearing, the judge will deliberate and a written judgment should normally be given within one month (and must be given within three months).
Average cost from issue of claim to judgment in Belgium
The cost of litigation varies widely depending on the complexity of the case.
As of January 1, 2008, the winning party can be awarded a lump sum allowance by the Belgian court in respect of the costs of legal representation and fees. This allowance is calculated on the amount of the claim and can be adjusted by the judge at the request of the parties on the basis of the following four criteria:
i) the financial capacity of the losing party (a criterion used to assess whether the amount of compensation should be lowered);
ii) the complexity of the case;
iii) the amount of compensation contractually provided for by the parties with their representatives; and
iv) the reasonableness of imposing the costs requested.
Costs awards are determined by royal decree and range from EUR82.50 for small claims to up to EUR33,000 for claims above EUR1 million.
In cases where an expert is appointed, the judge can decide which advance payments should be made by the parties to cover the expert’s fees and costs. At the end of the trial, the court decides which party will have to bear the expert’s fees. The court usually orders the losing party to pay this cost.
Third party/alternative funding
There is currently no practice of third parties funding claims in competition cases before the Belgian courts. However, it is possible to purchase a right to claim and pursue it in one’s own right.
That said, an old statutory rule provides that if a company purchases a disputed right of claim against another company, the latter (the defendant) can liberate itself by paying the price for which the claim was purchased by the former company (as well as the costs reasonably made in connection therewith and the interests calculated as from the day the purchase price was paid). This old statutory rule is meant to prevent speculation involving disputing rights and probably explains why we have seen Belgian companies like Cartel Damage Claims engage in buying up damage claims of companies affected by cartels in other jurisdictions such as Germany, but not in Belgium.
Alternative methods of dispute resolution
Alternative means of dispute resolution are available. Claims can also be the subject of arbitration or mediation.
The 1966 European Convention for Uniform Arbitration signed by all the Member States of the Council of Europe was implemented in Belgium in 1972 and incorporated in the Belgian Judicial Code. The provisions of the Belgian Judicial Code regarding arbitration have recently been updated, building on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration.
Brussels is an important arbitration center in Europe and its courts respect valid agreements to arbitrate disputes. The most important arbitration institution in Belgium is the CEPANI-CEPINA (Belgian Centre for National and International Arbitration), based in Brussels. There are no prohibitions on parties making use of any international arbitration institution. Arbitrations conducted under the auspices of institutions such as the ICC regularly take place in Belgium. There are also no prohibitions on ad hoc arbitrations being conducted in Belgium.
Mediation or alternative dispute resolution (ADR):
In general, a Belgian court will not enforce as mandatory an ADR clause in a contract; nor will it even exert any informal pressure on parties to attempt ADR before or during court proceedings. Therefore, for an ADR clause to be effective in Belgium all the parties to the contract must agree to refer their dispute to ADR at the time the dispute arises.
Several local courts, such as the Court of Antwerp, promote mediation. Professional judges act as mediators. During the proceedings, the court will send each party an invitation to present its case before the mediator, instead of continuing the proceeding. Parties can also choose this form of ADR in advance. The successful outcome of the mediation is a binding settlement agreement for the parties. If enforcement of a settlement agreement is necessary, the interested party can go to court to seek judicial ratification of this settlement agreement.
Availability of damages and quantification
Claimants may seek compensation for all damage suffered as a result of an infringement of competition law, including loss of profit and interest, in accordance with the judgments of the Court of Justice of the European Union in Courage v Crehan and Manfredi. The burden to prove the quantum of damages lies with the claimant.
Damages can be calculated by reference to the difference between the current situation of the victim and its hypothetical situation if the infringement had not occurred. The aim is to put the damaged party in the situation in which it would have been had the infringement or contractual breach not occurred.
It is arguable that the passing-on defense could be raised before the Belgian courts, since the claimant can only be indemnified for the damage it has actually incurred. However, no reported Belgian case law exists on this point.
In our view, the prior imposition of any fine will not normally be taken into account by the court in calculating damages (as fines do not go toward compensating third parties). However, there is no Belgian jurisprudence on this issue.
Punitive and exemplary damages
Punitive and/or exemplary damages are not available in Belgium. Courts can impose a penalty in circumstances where an order is not complied with (penalizing the non-compliant party either by reference to each day’s delay in complying with the order or for each infringement committed after the order). This is payable to the other party.
Availability of interim or final injunctions in respect of an alleged competition law infringement
Interim injunctions preventing the defendant from continuing to infringe competition rules against the applicant, pending full trial of the issues, may be sought from the civil courts in summary proceedings pursuant to Article 584 of the Belgian Judicial Code.
An application for interim measures is made to the president of the Belgian Court of First Instance, the Labor Court or the Commercial Court, depending on the subject matter of the dispute. In general, the request must be urgent and the claimant must face a threat of imminent damage if no interim measure is granted. The decision is provisionally enforceable, which means that an appeal can be brought against the decision, but the interim measure can be enforced until the time such an appeal is successful. A judgment in summary proceedings does not prejudice the outcome of proceedings on the merits.
An injunction can also be obtained from the president of a commercial court (in a manner similar to summary proceedings) pursuant to Articles XVII.1 et seq. of the Belgian Economic Law Code. Cases on infringements of competition rules are often brought on the basis of breach of these Articles, whereby the only relief possible is a cease-and-desist order, usually combined with a fine for any violation of a cessation order or for any delay in complying with the order. The injunction claim has to be instituted within one year from the facts on which the claim is based having taken an end.
Other types of relief
A claimant may bring an action before the civil or commercial courts with a view to obtaining a court order that prohibits certain behavior (i.e., interim relief or a cease-and-desist order in cases where “unfair trade practices” are involved). A party may also apply for a declaration of invalidity in relation to obligations, agreements or decisions which allegedly infringe competition law.
Although to date only a few damage claims have been brought before the Belgian courts, it appears that following the case instituted by the European Commission in respect of the Escalators and Elevators cartel before the Brussels Court, and the EUR120 million settlement by Proximus of a damage claim brought by its competitors Mobistar and Base, an increasing number of companies are exploring the possibilities of bringing damage claims before Belgian courts. That said, companies will regularly use the threat of competition damages claims to secure settlements or other commercial advantages without the matter ever getting to court.