Evidence in civil proceedings in Belgium

Litigation

Is there a duty to preserve documents and other evidence pending trial? Must parties share relevant documents (including those unhelpful to their case)?

The Belgian Judicial Code does not impose a general duty to preserve documents and other evidence pending trial. However, such obligation may result from other laws. Thus, tax and accounting laws impose an obligation to keep records and accounts for a number of years.

Further, there is no general obligation to share evidence with the other parties. There is no discovery process under Belgian law. However, if there is reason to believe that a party or a third party holds a document that is likely to prove a fact that is relevant to the dispute, the court may order that party or third party to submit it.

If the party or third party in question refuses to produce the document without a valid reason (eg, the document is privileged), it can be ordered to pay a non-compliance penalty. In addition, the court may, depending on the circumstances at hand, infer from a party’s refusal to submit certain documents that the disputed fact is proven or such other inference as the court shall deem reasonable.

Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?

Communications between lawyers who are members of a bar and their clients, medical records and some other documents are considered privileged and will not be allowed as evidence by the courts. Disclosing such documents or information may even, depending on circumstances, constitute an offence criminally prosecuted.

Some communications between in-house lawyers and their clients will also be deemed privileged.

External lawyers

Documents exchanged between external lawyers and their clients are covered by professional secrecy as protected by the Belgian Criminal Code. Belgian courts have, until now, been very protective of professional secrecy and allowed few exceptions. For example, the Belgian Constitutional Court has partly cancelled a law regarding money laundering that imposed an obligation on lawyers to blow the whistle on their clients in certain transactions.

Communications between external lawyers are confidential, pursuant to rules of conduct adopted by the Bar Councils. As a rule, any written correspondence between opposing lawyers in their capacity as counsel to a party is confidential, with limited exceptions.

As far as cross-border communications with European external lawyers is concerned, the Code of Conduct for European Lawyers of the Council of Bars and Law Societies of Europe guarantees confidentiality only in the event that the lawyer who intends to send a confidential letter to a lawyer in another member state clearly expresses this intention before sending the letter in question and the recipient does not immediately protest such announcement.

With regard to cross-border communications with other external lawyers, extreme caution is recommended.

In-house lawyers

The Belgian Act of 1 March 2000 establishing the Institute of In-House Lawyers preserves the confidentiality of legal advice given by an in-house lawyer for the benefit of his or her employer and in his or her capacity as legal adviser.

The protection granted by this provision is narrower than that which applies to communications between a lawyer and his or her client.

The statute only covers legal advice, thereby excluding (draft) agreements, minutes of meetings, correspondence with other companies, communications that only contain information, etc. The confidentiality rule also does not cover communications with persons other than the employer or the company’s external lawyers. Neither does it apply when the letter sent to the employer is also sent to other persons and third parties. Therefore, correspondence with the lawyer of the adversary party is not confidential. However, a convention was signed in 2006 between the Belgian Institute of In-House Lawyers and the Belgian French- and German-Speaking Bar Association, which considers as confidential communications and negotiations between an in-house lawyer and an external lawyer from the bar mentioned above.

Confidentiality is safeguarded in both civil and criminal procedures, as well as towards other authorities, such as the social or environmental inspection, and tax authorities. The protection also stands before Belgian competition authorities. However, the European Court of Justice decided, in the 1982 AM&S case, that the legal privilege of in-house lawyers does not stand towards European competition authorities. In 2010, in the Akzo case, the European Court of Justice confirmed this position and decided that the privileged character of communications between a lawyer and his or her client did not extend to the communications between a firm and its in-house lawyers.

Do parties exchange written evidence from witnesses and experts prior to trial?

There is no pretrial discovery process in Belgium. Witness statements and expert reports will be exchanged during trial and submitted together with the parties’ respective briefs (see question 6).

How is evidence presented at trial? Do witnesses and experts give oral evidence?

General

Belgian civil procedure is accusatorial in nature: since the courts have a rather passive role, it is up to each party to prove the facts on which it bases its claim or defence.

Witnesses

While parties rarely rely on witnesses, this is allowed under Belgian law. The parties may file witness statements (affidavits), and courts may order witness statements to be filed ex officio. Since August 2012, witness statements are subject to specific substantive and formal requirements.

The parties may request the court to order the deposition of a witness. The court may also order the deposition ex officio. This can take place either in court or at another location, depending on circumstances.

If a witness refuses to appear voluntarily, the court may summon the witness to appear, subject to a non-compliance penalty and damages.

A judge will be designated by the court to administer the oath to the witness and take the deposition. As a matter of principle, the judge alone may interrogate the witness. If the parties are present, they may not confront the witness directly and must submit their questions to the judge, who decides whether to ask the question to the witness. Courts are usually flexible and will allow direct follow-up or clarification questions.

Experts

Court-appointed experts

The court may, at a party’s request or ex officio, order an expert investigation. It will then appoint an expert who will meet with the parties, carry out an expert investigation and submit a draft report on his or her findings to the parties. The parties will be allowed to comment on the draft report before the expert files the final report. The court is not bound by the expert’s findings. The court may decide to hear the expert, order additional investigations, ask questions to the expert or appoint other experts.

Party-appointed experts

The parties may file their own expert reports and request the court to hear their expert. In this case, the procedure for witness depositions applies.