On 6 June 2017, the EU Directive of 26 November 2014 on national damages actions for competition law infringements (2014/104/EU) was implemented in the Belgian Code of Economic Law (Damages Act).
The Damages Act enables every natural or legal person, that has suffered harm as a result of a competition law infringement, to claim damages from the infringer. This possibility is not new. Damages actions for competition law infringements were already possible under Article 1382 of the Belgian Civil Code (CC) which deals with non-contractual liability. But recourse to Article 1382 CC made for an opaque system considering the lack of guidance as to quantification of damages and proof of harm. The Damages Act brings some clarity in that respect.
The Damages Act foresees a (rebuttable) presumption that a cartel caused harm. In addition, the Damages Act provides that a (final) finding of a competition law infringement by the BCA or by the Brussels Court of Appeal constitutes irrebuttable evidence that there has been a competition law infringement. This is not the case for final decisions rendered in other EU member states, which only constitute prima facie evidence.
The Damages Act acknowledges the so-called "passing-on defence". If invoked successfully, the defendant does not have to (fully) compensate the claimant if the defendant proves that the claimant (partly) passed on the surcharges caused by the competition law infringement.
The Damages Act foresees that national judges can, upon request of a party, order the disclosure of evidence from the defendant or a third party, including confidential information (which the judge needs to safeguard). Evidence contained in the competition authority's file may also, under certain conditions, be disclosed, with the important exceptions of leniency statements and settlement submissions.
When it comes to the assessment of damages, a national judge can request the BCA to assist it in assessing the amount of damages to be awarded.
Finally, the Damages Act foresees a joint and several liability for infringers which means that each participant in the infringement can be held liable for the compensation in full (except for immunity applicants and SMEs, who are only liable vis-à-vis their own (direct and indirect) purchasers or suppliers except where full compensation cannot be obtained from the other infringers).