Class actions in Belgium

  1.  Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.
  2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.
  3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.
  4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?
  5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.
  6. What types of relief are available, i.e., damages and/or injunctive relief? 
  7. On what basis are damages calculated i.e., compensatory and/or some other basis?
  8. Are punitive or exemplary damages recoverable?
  9. Will domestic law need to be changed to comply with the Representative Action Directive?
  10. Are there special rules for settlement of class actions, e.g., requirement for court approval?
  11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?
  12.  Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?
  13. Do you have specialist courts for these procedures?
  14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?
  15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?
  16. Can arbitration clauses lawfully contain class action waivers?
  17. Are contingency fee agreements permissible?
  18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?
  19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

1. Do you have a specific procedure or procedures for bringing “opt-in” class actions?  If so, please outline such procedure(s) and their key features.

With the Act of 28 March 2014 regarding collective redress, the Belgian legislature introduced the concept of class actions into Belgian law. Before the 2014 Act, class actions were not possible in Belgium. Filing a lawsuit for multiple claimants was possible if their claims were closely connected, but all the names and addresses of all the individual claimants had to be mentioned in all court documents (writ of summons, submissions, judgment, convocations, etc.). The practical challenges of these requirements made it almost impossible to file a lawsuit for thousands of claimants. 

Since the Act of 28 March 2014, it is possible to file a class action in Belgium, which has been formally named an “action for collective redress.”

Only a  group of consumers or small and medium size enterprises (SME) may initiate an action for collective redress when they suffer damage as a result of a common cause.  The group of claimants must choose whether they think the action should have an opt-in or opt-out system and after hearing argument, the Court will make the final decision on this.. During the parliamentary debate, the legislators stated that an opt-out system is to be preferred where there are a large number of claimants who suffer  minimal financial damage. An opt-in system is to be preferred where it is impossible to estimate the number of potential claimants or where the kind of damage requires the active participation of the claimant, such as in case of a violation of privacy.

The court will always impose an opt-in system for the group members who do not have their main place of residence in Belgium, as well as in situations where the claim regards compensation of physical or moral collective damage.

2. Do you have a specific procedure or procedures for bringing “opt-out” class actions?  If so, please outline such procedure(s) and their key features.

Yes, see question 1.

3. Are there specific rules on standing for bringing claims under these procedures (e.g., that claims can only be brought by consumer associations)?  If so, please summarise those rules.

Actions for collective redress are only open to consumers and to small and medium sized enterprises who are represented by a “group representative”.

The group representative for claims of consumers must be either:

  1. An association that represents the consumers’ interests and that is recognized by the Minister of Economic Affairs;
  2. An association that is actively pursuing the consumers’ interests in collective redress matters and that exists for more than three years;
  3. The public service of the Ombudsman;
  4. A representative body that is recognized by a member state of the European Union or the European Economic Area to act in collective redress cases.

The group representative for claims of small and medium sized enterprises must be either:

  1. An interprofessional association that represents the SME’s interests and that is recognised by the government;
  2. An association that is actively pursuing the SME’s interests in collective redress matters and that exists for more than three years;
  3. A representative body that is recognized by a member state of the European Union or the European Economic Area to act in collective redress cases.   

4. How frequently are class actions brought in your jurisdiction? Are there any pending changes to your class action rules that are likely to increase the number of claims filed?

Since 2014, there have been around a dozen claims for collective redress brought before the courts.

Of those cases, three led to a court decision. First, in a case against Volkswagen in relation to the emission scandal (“diesel gate”), then in a case against telecom operator Proximus in relation to the replacement of a decoder and finally in a case against Thomas Cook in relation to a flight with 8 hours delay.

5. Are the procedures for class actions restricted only to certain causes of action/types of claim, e.g., competition claims?  If so, please describe these restrictions.

The procedures for class actions are restricted to specifically permitted types of claim including:

  1. Competition and pricing of products and services
  2. Commercial practices and consumer protection
  3. Payment and credit services
  4. Safety of products and services
  5. Intellectual property
  6. Information society services
  7. Medicinal products
  8. Supply of gas and electricity
  9. Construction of houses
  10. Foodstuffs and consumers’ safety
  11. Liability insurance for motor vehicles
  12. Product liability
  13. Data protection
  14. A variety of travel services, including transport per flight, train, ship or bus.

Class actions are not available for disputes between employees and employers, for shareholders’ disputes or for environmental claims.

6. What types of relief are available, i.e., damages and/or injunctive relief? 

The only possible relief is the provision of compensation, either financially or compensation in kind (in natura). Financial compensation aims to compensate the claimant for an amount of damages which is deemed appropriate in relation to the loss suffered. Compensation in kind could be in the form of replacement of the non-conforming product. 

7. On what basis are damages calculated i.e., compensatory and/or some other basis?

The only basis for damages is the compensation of the actual loss suffered.

8. Are punitive or exemplary damages recoverable?

There is no room under Belgian law for exemplary damages or punitive damages.

9. Will domestic law need to be changed to comply with the Representative Action Directive?

Although there will be some minor changes made, it is unlikely that there will need to be complete reconstruction with regard to the main principles of the Belgian Act of 2014 on Collective Redress.

10. Are there special rules for settlement of class actions, e.g., requirement for court approval?

If the parties reach an amicable solution to their dispute, the court must formally approve or disapprove the final settlement. The settlement must be complete and reasonable.

The court will check whether the following elements of the settlement are reasonable:

  1. The amount of damages for the group of claimants;
  2. The terms and the procedure for expressing the opt-out;
  3. The way they plan to inform the claimants that the settlement may be revised in case the damage would increase after the settlement; and 
  4. The compensation of the costs of the group representative. 

11. Beyond the existing rules for taking jurisdiction in unitary claims, are there any additional rules on jurisdiction for your class action procedures?  Are there any territorial limitations to who may be members of the class?

The only courts which have jurisdiction are the Brussels court of first instance and the Brussels enterprise.

The territorial scope for opt-out claims is restricted to persons domiciled in Belgium, but persons domiciled elsewhere may opt-in to a claim for collective redress.

12. Please describe the “certification” requirements for each of your jurisdiction’s class action procedures, e.g., how similar must the claims be?  Are there any other criteria to be met for the court to approve use of the procedure?

An action for collective redress is only possible to claim compensation as a whole claim for the individual damages suffered by the members of a group of consumers or small and medium sized enterprises so long as they have a collective cause.

The court will only allow the proceedings to go ahead if the action for collective redress seems to be more efficient than an action based on common law.

13. Do you have specialist courts for these procedures?

Yes, the Brussels court of first instance and the Brussels enterprise courts, as well as the Brussels court of appeal for the appellate level.

14. Are there any special rules for discovery/disclosure for class action procedures that are different to the rules for unitary actions?

No.

15. Are there any special rules for appeals in class action procedures that are different to the rules for unitary actions?

There are no special rules on appeals, but only the Brussels court of appeals has jurisdiction.

16. Can arbitration clauses lawfully contain class action waivers?

Although this has not been brought before the court, it is highly unlikely that an arbitration clause with a class action waiver would be upheld by a Belgian court.

17. Are contingency fee agreements permissible?

No, the group representative may only charge his actual costs and his solicitor’s fees for conducting the legal proceedings.

18. What are the rules on cost shifting, i.e., does the losing party ordinarily have to pay the winning party’s costs?  Are adverse costs awards capped?  If so, at what level(s)?

The party that loses a case before the court will not be liable for the prevailing party’s administrative costs. However, it will be liable to pay legal fees, such as the fees of the bailiff, the fees of experts whose opinions were required to substantiate the claim and its solicitor’s fees. The solicitor’s fees are capped to an amount of 36,000 EUR for claims exceeding 1 million EUR.

19. Is litigation funding of class actions permissible?  If so, how prevalent is litigation funding?

Litigation funding is not prohibited but funding is not generally used in Belgium.

See the Overview of the Representative Actions Directive >>
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