Bringing civil claims in Belgium

Litigation

What are the time limits for bringing civil claims?

Under Belgian law, terms of limitation are a matter of substantive, not procedural, law. They will therefore be determined by reference to the substantive law applicable to the dispute, as shall be designated by the court’s conflict of laws rules.

Under Belgian law, the main terms of limitation are as follows:

• a ‘real action’ (claim for the recovery or protection of real property) shall be time-barred after 30 years (10 years in some circumstances);
• claims in tort are time-barred five years after the day on which the plaintiff is aware of the injury and of the identity of the person liable for this injury, and in any event 20 years and one day after the date on which the fact, action or negligence that caused the prejudice occurred; and
• most other claims are time-barred after 10 years (eg, the term of limitation to enforce a judgment is 10 years).

There are many exceptions to these general terms of limitation in respect of property leases, compensation for the termination of commercial agency agreements, professional fees, etc.

Finally, the above terms of limitations can be renewed by serving a writ of summons, notice of a payment request or attachment, if the plaintiff acknowledges the debt, or if the creditor’s lawyer, bailiff or representative sends a letter of formal notice to the debtor located in Belgium provided this letter meets certain legal requirements.

Are there any pre-action considerations the parties should take into account?

With a few exceptions (such as in disputes regarding residential lease and land lease agreements), Belgian law does not require any action to be taken before legal proceedings are initiated.

If the parties have agreed on mediation or on another form of pretrial ADR, the court shall stay the proceedings, at the defendant’s request, until the ADR method has had a chance to succeed.

The defendant domiciled in Belgium may require the foreign plaintiff to post a guarantee, covering the costs of the proceedings and of service, before the court hears the claim (cautio iudicatum solvi). This does not apply if the claimant is domiciled in the European Union or in a state that has concluded a treaty with Belgium exempting claimants from this obligation.

How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement? Do the courts have the capacity to handle their caseload?

In most cases, a process server will serve summons on the defendant, either by delivering a writ of service to the defendant’s address or through other methods of service available under international conventions. After service has occurred, the claim will be recorded in the court’s registry. In certain cases, the summons can be filed by the claimant with the court rather than served; the court will then send notice to the defendant by registered mail. The defendant is notified of the commencement of proceedings when he or she receives the notification of the court by registered mail. The defendant is deemed to have received this notification on the day following the one when the notification was brought to his or her domicile, residence or address for service.

The summons must comply with strict requirements regarding the identification of the parties to the dispute, the factual background of the dispute, the claim and the relief sought, the court seised, and the date, time and place of the introductory hearing. Parties are allowed to raise new arguments during the exchange of briefs. However, under Belgian law, a ‘new claim’ (ie, an application aiming at extending or modifying the scope of the initial application) must be based at least in part on statements or facts contained in the initial writ of summons.

There is a minimum waiting period of eight days between the date of service and the date of the introductory hearing in court. When the defendant is a foreign resident, the period of notice is extended by an additional 15 days for countries with which Belgium shares a border and for the United Kingdom, 30 days for other countries in Europe and 80 days for the rest of the world. In urgent cases, an application may be lodged with the court for an ex parte order, shortening the waiting period.

A third way of introducing a claim is by an ex parte application filed with the court. In this case, the defendant is not notified or served, and is not made aware of the commencement of proceedings. A claim can only be lodged ex parte if the law expressly provides so (such as in proceedings for the enforcement of arbitral awards or foreign judgments or applications for authorisation to attach assets). A claim for temporary measures can also be initiated by an ex parte application when exceptional circumstances warrant this, such as extreme urgency, the need to take the defendant by surprise or the impossibility of identifying the adverse party (such as in cases of strikes).

Finally, the parties may also file a joint application to the court and request the court to settle their dispute.

Some of the Belgian courts, particularly the courts of appeal, have a backlog of cases, which can delay the adjudication of a dispute for several years. Recent amendments to the Belgian Judicial Code, together with the appointment of more judges and court assistants, have led to improvements. The Belgian Judicial Code also allows for expedited procedures in a series of cases.

Moreover, initiatives are taken by some courts in order to manage their caseload in a timely manner. For instance, the Brussels court of the enterprise made a series of organisational changes effective from 1 September 2015:

• four chambers are reserved for matters to be dealt with by the presiding chairs of the court (urgent relief, etc). Eight chambers deal with the introduction of new cases and summary proceedings (see question 6). Eleven other chambers manage classical proceedings on merits. Other distinct chambers devote their time to specific matters (order for payment, etc);
• some hearings are expressly left open every six weeks in order to handle case-management issues; and
• a list of cases in which the parties are ready to plead is set up so as to allow for hearings to be scheduled at short notice.

What is the typical procedure and timetable for a civil claim?

Generally speaking, Belgian civil proceedings comprise five phases:

• service or notice;
• introductory hearing;
• exchange of briefs;
• oral pleadings held before the court; and
• the judgment rendered by the court.

The claim is usually not heard at the introductory hearing, but postponed in order for the parties to exchange briefs.

Simple claims, uncontested claims, interim measures such as the appointment of experts (see question 12), language issues (see question 36), challenges to the court’s jurisdiction and a few other matters may be heard at the introductory hearing.

Upon the introductory hearing, the court or the parties (see question 7) must set a procedural timetable that determines both the deadlines for filing the parties’ briefs and the date of the oral hearing. Parties may, however, ask jointly for the postponing of the case for an indefinite period.

Can the parties control the procedure and the timetable?

The power of initiative rests mainly with the parties, particularly with the claimant. The courts will not take any initiative and will act only if a party has requested it to do so.

The parties may agree on the timetable for exchanging briefs and on postponing the oral hearing. The courts will determine ex officio the calendar when the parties do not reach an agreement on it.

If a new and relevant fact is discovered by a party after the deadlines for exchanging briefs, the judge may, at that party’s request, grant new deadlines and, if necessary, a new date for the oral hearing.

When the parties do not agree on other procedural matters, the courts will step in, at the request of one of the parties, and issue procedural orders.

New provisions have been inserted in the Belgian Judicial Code to allow for the electronic management of cases. However, these provisions are not fully effective yet due to a lack of technical means. So far, it is possible to file written submissions by electronic means with the registries of the courts of appeal, the courts of the enterprise and some justices of the peace. The system is also currently being tested before some courts of first instance (Antwerp, Ghent, Liège and Namur).

May litigants with similar claims bring a form of collective redress? In what circumstances is this permitted?

There are various methods of multi-party litigation (that is, litigation involving multiple claimants or defendants or both) in Belgium. These include:

• Actions for collective redress (class actions): under the influence of the European Commission recommendation on common legal principles on collective redress dated 11 June 2013 and of legislative initiatives in some neighbouring European countries, a Belgian Act regarding class action proceedings was passed on 28 March 2014. The Act was introduced in Book XVII, Title 2 of the Belgian Code of Economic Law and came into force on 1 September 2014. The need was clearly felt both to ensure access to court in those situations where the circumstances discourage an individual to act on his or her own, and to ease and enhance the efficient settlement of multiparty disputes. The scope of this Act is very limited: only groups of consumers represented by non-profit organisations or public bodies are allowed to bring a class action suit and this suit must be addressed against an ‘enterprise’ (as defined in question 1) in case of an alleged violation of specifically enumerated Belgian and European rules (insurance; banking and finance; energy; passenger transport; etc). On 6 June 2017, the scope of the class action regime was extended to infringements of EU competition law (articles 101 and 102 TFEU including the ban on cartels and abuses of dominant positions). The Brussels Court of First Instance and the Brussels Court of the Enterprise have an exclusive jurisdiction to rule on class actions. Since the entry into force of the Act in September 2014, six class actions have been introduced before Belgian courts. All these actions have been brought by Test-Achats/Test-Aankoop, the main Belgian consumer protection organisation. The first class action was initiated to obtain compensation from the National Railway Company of Belgium (NMBS/SNCB) for the interruption and the suspension of the train service during eight days of national strikes in 2014 and 2015. No decision was handed down in that case since the parties reached an amicable settlement before the hearings on the admissibility of the class action. The second class action has been brought against the commercial airline company Thomas Cook following the delay of a flight. On 4 April 2016, that action was found admissible by the Brussels Court of First Instance. The court decided to apply the opt-in system (ie, only the consumers that have suffered the collective harm and have expressly notified the court’s registry of their intention to be part of the group within six weeks will belong to the group). The third class action was brought against the Volkswagen Group within the context of ‘Dieselgate’. The fourth action was initiated against the Belgian telecommunications company, Proximus, after it introduced a renting formula for its new decoders. The most recent class actions were brought against eight websites involved in the resale of concert tickets at high prices and against Groupon Belgium.In 2014, the Belgian government stated that class actions as provided in the Act of 28 March 2014 will be assessed two years after its enactment. At the end of 2016, the Belgian Federal Public Service Economy sent a questionnaire to stakeholders about the admissibility requirements, composition of the group, conduct of the proceedings, procedural costs and funding, etc. The Belgian government has then assessed class action proceedings on the basis of the results of the questionnaire. On that basis, on 1 September 2017, the Belgian Council of Ministers approved a preliminary draft bill extending the access to class actions to small and medium-sized enterprises (SMEs). Further to some amendments, the draft bill was adopted by the competent committee of the Chamber of Representatives on 6 March 2018 and is soon to be put to vote in plenary session.
• Actions of collective interest: in certain cases, the law allows some form of representative action, where consumer or professional organisations may seek injunctive relief against practices that harm the interests of consumers or of the members of the organisation. Cases arise frequently in respect of advertising for consumer goods, consumer safety or securities offerings. These organisations cannot recover damages for their members. They may, however, seek damages for themselves, to the extent that the practice in question harms their own personal interests. Similar remedies exist in environmental law. In addition, workers’ unions and qualified human rights organisations are allowed to seek injunctive relief against practices that violate certain labour rights or non-discrimination laws.
• Collective (related) actions: several individual legal actions arising from a similar event or the same contract can be joined and consolidated in the same proceedings by different claimants who are often represented by the same lawyer. This happens, for instance, in major securities fraud or negligence cases. The related actions are handled by the court jointly even if they remain, from a legal perspective, individual actions.