General introduction to the legislative framework for private antitrust enforcement
Private competition enforcement in Belgium generally consists of four different types of actions. First, injured parties may seek cease-and-desist orders. These actions represent the majority of private enforcement actions brought under Belgian law. Cease-and-desist orders will generally be based on Articles XVII.1 et seq. of the Code on Economic Law (CEL). These Articles relate to a specific procedure to obtain cease-and-desist orders from the president of the Commercial Court competent in the matter of unfair trade practices. It is settled case law that competition law infringements are considered to fall within the scope of the notion of unfair trade practices as set out in Article VI.104 CEL. Second, it will also be possible to request an interim remedy from the president of the competent court to obtain urgent relief. Contrary to cease-and-desist orders, this judgment will only result in temporary relief, and not in a judgment on the merits. A third category of private enforcement actions available to claimants are private damages actions. These are dealt with in more detail below. Finally, competition law defences might also occasionally arise in contractual disputes.
With regard to the third category of (recovery) damages actions, a new set of rules has been made available as of 22 June 2017 to those persons that wish to claim damages on account of having suffered harm following an infringement of competition law. With the act of 6 June 2017 (Implementation Act), the Belgian legislator transposed the Private Damages Directive regarding actions for damages into the Belgian legislative framework. This was done by inserting a new Title 3, 'The action for damages for infringements of competition law', in Book XVII, 'Particular judicial procedures', of the CEL. Although private damages actions were already possible prior to the transposition of the Private Damages Directive on the basis of general tort principles, Article XVII.72 CEL now explicitly provides that any natural or legal person who has suffered harm due to an infringement of competition law has the right to claim and to obtain full compensation for that harm, in accordance with the general tort principles under Belgian law. The Implementation Act provides a number of new substantive and procedural rules that facilitate the bringing of private damages actions by lessening the burden of proof on claimants. This is achieved through the introduction of various presumptions and by making access to evidence easier. At the same time, the Implementation Act also extends the scope of the Belgian class action regime to infringements of European competition law that can be brought before the Brussels courts.
Private damages actions can be brought by any natural or legal person, irrespective of the existence of a direct contractual relationship with the infringing undertaking, and regardless of whether there has been a prior finding of an infringement by a competition authority. A decision by a competition authority establishing a competition infringement is therefore not a prerequisite. Both standalone and follow-on actions for damages are available under Articles XVII.71 CEL to XVII.91 CEL.
As stated above, the general principles of Belgian tort law will remain applicable to private damages actions. This means that to bring a successful action for damages, the claimant must demonstrate a fault attributable to the defendant, the concrete and certain damage suffered by the claimant, and a causal link between the wrongdoing and the damage caused. With the new Implementation Act, however, the Belgian legislator has introduced a number of legal presumptions to lessen (or even reverse) the burden of proof to the benefit of claimants. One example is the rebuttable presumption that cartels cause harm. Within the new legal framework, it will be for the infringer to rebut the presumption. Private enforcement actions can be brought before the competent commercial court or the court of first instance. It is, however, important to flag that the Implementation Act does not quantify the presumed harm. The precise harm suffered will have to be demonstrated in each specific case. To the extent that the precise and concrete harm has been established, the claimant will be entitled to full compensation (i.e., actual loss, lost profit plus interest). The Belgian legislator does not allow for overcompensation or punitive damages.
For private enforcement claims brought under general tort law, the limitation period is five years following the day on which the claimant became (or should reasonably have become) aware of the harm suffered and of the identity of the person liable for such harm, or in any event 20 years from the occurrence of the facts that caused the harm. Article XVII.90 CEL provides, however, that the limitation period is five years after the day on which the infringement of competition law has ceased and the injured party knows (or should reasonably have known) of the infringement, the damage that was suffered and the identity of the infringer. To determine the start date of the limitation period, it will not be sufficient that the claimant is aware of the damage and the wrongdoing. The injured party must also have (reasonable) knowledge of the fact that the wrongdoing constitutes an infringement of competition law. Additionally, the limitation period will be interrupted if a competition authority takes action to investigate or bring a proceeding for an infringement of competition law for damages until a final infringement decision is taken. Such period will be suspended in respect of the parties that are or were involved in an amicable settlement. For cease-and-desist actions, the limitation period is one year after the termination of the cause of action.
Finally, the liability for infringing competition law is administrative in nature. Infringements of competition law are not criminally sanctioned in Belgium. The only exception concerns bid-rigging practices, where the companies involved can be sentenced to pay fines, and the individuals concerned can face imprisonment up to six months, or the payment of fines, or both.