Introduction to the class actions frameworki Definition of class or collective actions
In Belgium, there are various forms of multiparty litigation (that is, litigation involving multiple claimants or defendants). These include the following.Action for collective redress (class action)
This is an action exercised by a claimant appointed by law (the group representative) who, on behalf of an unknown group of individuals who have not previously given a proxy to this applicant, brings an action that leads to a decision that prevents subsequent litigation, not only towards the group representative and the defendants, but also towards all group members that have opted in or have not opted out of the procedure. Only the group representative and the defendants are parties to the proceedings, not the group members. There is no affiliation of membership between the acting representative and the individuals represented. At the beginning of the procedure, the number of represented group members is undetermined. This is the main type of class action addressed in this chapter.Collective actions (related actions)
Several individual legal actions arising from the same or a similar event or contract joined and consolidated in the same proceedings by different claimants are often represented by the same lawyer. The related actions are examined by the court jointly, even though they remain individual actions.Action of collective interest
This is an action brought by an organisation or by a group of people, regardless of whether they intend to achieve an objective of general interest, but with the aim of realising an objective that goes beyond the personal interests of the individual members of the organisation or group.ii Use of class or collective actions
In principle, class actions are not permitted under Belgian law. For actions to be admissible, the claimant must fulfil the 'personal-interest' requirement.2 An important exception to this principle was introduced in Title 2 of Book XVII of the Belgian Code of Economic Law by the Act of 28 March 2014, providing for the 'action for collective redress'. Until 2018, the scope of this action was strictly limited: only groups of consumers represented by non-profit organisations or public bodies were allowed to bring an action for collective redress, which must be brought against an enterprise and must concern an alleged violation of specifically enumerated Belgian and European laws, which all include consumer protection provisions (see Section III). Since June 2018, actions for collective redress can also be instituted by small and medium-sized enterprises (SMEs) represented by non-profit organisations or public bodies as described in the law (see Section III). Since the Act entered into force in September 2014, 10 class actions have been instigated (see Section II).
Collective action is a very common method to collectively bring related actions before Belgian courts.
There are several exceptions to the personal-interest requirement. For example, labour unions and qualified human rights organisations are entitled to seek injunctive relief against practices that infringe upon specified labour rights or non-discrimination laws. Professional organisations and consumer protection organisations can also bring cease and desist actions in case of unfair commercial practices.iii Principal institutions
Since 2018, the Brussels Commercial Court and the Brussels Court of Appeal (in appeal) have exclusive jurisdiction to rule on actions for collective redress.3
There are specific rules for actions of collective interest.
The year in review
Since the entry into force of the class action regime in the Belgian legal order in September 2014, 10 class actions have been instigated. Nine of the 10 actions were brought by Test Achats, the main Belgian consumer protection organisation.
The first action was brought against the commercial airline company Thomas Cook following a major delay of a flight from Tenerife South to Belgium. The second action was launched to obtain compensation from the national railway company SNCB/NBMS for the interruption and the suspension of the train service during eight days of strikes in 2014 and 2015. The third class action was brought against the Volkswagen Group within the context of the 'Dieselgate' scandal. The fourth action was initiated against the largest Belgian telecommunications company (Proximus) after it introduced a renting formula for its new decoders. The fifth class action was initiated against eight websites involved in the resale of concert tickets at exorbitant prices. The sixth class action was initiated against the marketing company Groupon following a sales offer for diapers by a company named Luierbox. The seventh class action was brought against three Facebook entities within the context of the Cambridge Analytica data scandal. The eighth class action was undertaken at the initiative of the Belgian Ombudsman Service for Energy against six energy suppliers concerning fixed fees that energy suppliers continue to charge when energy contracts are terminated early. The ninth class action was filed against Ryanair in relation to flight delays and cancellations resulting from the strikes during the summer of 2018. The most recent class action was filed in 2020 against Apple with regard to planned obsolescence of Apple devices through software updates.