At the end of September 2009, the Government announced its draft law on class action suits. Under the draft law, the courts of appeal would be competent to deal with class actions, which, in practice, would mean that judgments are final on substance. The draft law also introduces the possibility for negotiations and settlements outside court, the outcome of which could then be approved by the court of appeal. From a procedural perspective, the draft law also derogates from a fundamental principle of Belgian Judicial Code law according to which a claimant must have a personal and direct interest for a claim to be considered as admissible by the Court as it enables one person sufficiently representing the interests of the victims of a damage to represent these.
This initiative by the Government was preceded by similar actions taken by the Flemish section of the Brussels bar. In May 2009, the Flemish section of the Brussels bar amended its deontological Code in order to allow class action suits. In particular, the existing prohibitions to make fees primarily dependent on the outcome of a case and to make publicity through a personalised services offer were eased. The Flemish section also adopted guidelines creating a framework for collective actions and clarifying clients’ rights and obligations. It was foreseen that the amendments and guidelines would come into force on 1 October 2009. However, in light of the Government’s recent initiative, the Body of Flemish bars has now asked the Flemish section of the Brussels bar to suspend the entry into force of these measures.
These developments are of relevance in the area of competition law, as they will create the legal environment for the introduction of class action suits for damages in cartel cases. In this respect, both the draft law and the guidelines of the Flemish section of the Brussels bar contain an explicit reference to the European Commission’s initiatives to stimulate such damage claims.