On 1 September 2014, a new law introducing a new section in the Economic Law Code entitled ‘actions for collective redress’ - also known as ‘class actions’ - enters into force in Belgium. It provides that class actions allow for the aggregate of individual consumer complaints to be brought in a single court proceeding. This is the first time in Belgium that consumers may file a class action to obtain compensation for a loss.
The law of 28 March 2014 introduces a new section in the Economic Law Code entitled ‘actions for collective redress’, also known as ‘class actions’ (hereinafter, the Law of 28 March 2014).
These class actions allow for the aggregate of individual consumer complaints to be brought in a single court proceeding. The introduction in this particular area of law was discussed in Belgium for some time. It should be noted that this is the first time in Belgian law that a class action may be filed to obtain compensation for a loss.
The Law of 28 March 2014 does not introduce a generally applicable mechanism for collective redress under Belgian law, given that its scope is limited to claims brought by consumers against companies based on the violation of contractual obligations or certain European regulations or domestic laws in the area of consumer protection. The most important objective of this new piece of legislation is indeed to put consumers in a stronger position. Before the Law of 28 March 2014, they were forced to file individual actions or rely on extra-judicial ways to resolve a dispute. In practice, there were large barriers to the effective use of individual actions; consumers didn’t have enough knowledge of their rights, and the costs relating to a single procedure were often too high for the individual to bear. In the field of competition law for example, the Law of 28 March 2014 will make it easier for consumers to obtain damages from companies who have violated Belgian competition law.
The Law of 28 March 2014 amends neither the provisions of the Civil Code dealing with civil liability (ie no punitive damages) nor the rules of evidence (ie no discovery).
A class action is only available to consumers, ie individuals who act for purposes that fall outside their trade, business, craft or professional activity. Only companies (and no public bodies) can be defendants in class action proceedings.
The scope of the type of loss for which consumers may claim is very broad; actions may be brought for material, bodily and moral damage.
The action must be based on a potential violation of (i) contractual obligations of the company, (ii) the European regulations or domestic laws enumerated in the law, or (iii) one of the royal decrees executing the legislation. The list comprises 31 regulations and laws (see annex) covering a variety of domains, such as competition law, market practices and consumer protection, payment and credit services, intellectual property, energy, telecoms, transport, pharmaceuticals, food, and insurance. In addition, the court must be persuaded that an action for collective redress is more appropriate than the individual civil procedure. To make this decision, it will take into account the size of the alleged damage and the cause of damage.
The group of consumers who wish to initiate proceedings must consist of people who have suffered damage in their personal capacity due to a common cause. However, they are not able to initiate the proceedings themselves – they must appoint a representative of the group. This condition was inserted in the law to avoid reckless actions being brought. The representative must be an association either represented in the Council for Consumption (Raad voor het Verbruik/Conseil de la Consommation) or recognised by the responsible minister. In addition, a public body, the Consumer Ombudsman Service (Consumentenombudsdienst/Service de médiation pour le consommateur), may also represent the group. The group representative may only receive compensation for costs incurred and cannot make any profit.
If the parties have reached an agreement before the filing of the proceedings, they can ask the court to homologate the agreement.
The Law of 28 March 2014 sets out a two-stage procedure if no agreement is reached before the filing of the petition.
Phase 1: admissibility of the petition
After the representative has filed the petition, the court must first determine whether the claim is admissible. The court may ask for further details from the claimant. If the details are not submitted or submitted in an untimely fashion or incompletely, the action is deemed to be not filed.
Phase 2: negotiation
If the court declares the claim admissible, it will determine whether the case will be governed by an opt-in (only the consumers who have expressly declared that they wished to be included will be part of the group) or an opt-out system (all the consumers are part of the group, save those who have indicated that they wished to withdraw). However, if the proceedings aim to obtain compensation for physical or moral harm, the opt-in procedure is compulsory. The legislator considered that it was better to leave to the judge (or the parties) the choice of the applicable system. The choice is irrevocable.
In addition, the court is mandated to grant the parties a period of time ranging from three to six months during which they must try to negotiate an agreement for collective redress. This period may be extended once on the joint request of the parties for no longer than six months. If an agreement is reached, it may then be homologated by the court; the court retains a margin of appreciation in evaluating the agreement. Although such a judicial decision will have the same legal consequences as a judgment, please note that the agreement is not an admission of guilt or liability and cannot be used in this way in subsequent proceedings.
If no agreement has been reached, the judicial proceedings will be continued in accordance with the provisions of the Judicial Code applicable to the ‘ordinary’ proceedings.
If, at the end of the examination of the matter by the court, a final decision is made in favour of the consumers, the court will appoint a loss administrator (schadeafwikkelaar/liquidateur) to oversee the execution of the decision. He must create a provisional list of group members who have explicitly identified themselves to be members of the group or subcategory. He may exclude certain people who have identified themselves as members if he believes that they don’t meet the description of the group or subcategory, though he must justify his decision.
The list is filed with the court registry and is publicly available. At this point, the loss administrator notifies the members of the group he wishes to exclude. The representative and the defendant may challenge the inclusion or exclusion of members on the list. After this period, the registrar must notify both the loss administrator and the relevant members of the court’s decision.
The courts of Brussels are exclusively competent to hear claims relating to class actions.
Entry into force
The Law of 28 March 2014 comes into force on 1 September 2014, though certain provisions, such as the Consumer Ombudsman Service, will be regulated by other laws and royal decrees that enter into force on a later date. The Law of 28 March 2014 only applies to events that occurred after its entry into force.
Class actions and damages arising from competition law infringements
For companies who are suspected or have been found to have breached the competition laws, the entry into force of the Law of 28 March 2014 is likely to create an increased risk of follow-on claims for damages by consumers who have suffered harm as a result of the competition law infringement. It is interesting to note that the European competition rules (Articles 101 and 102 of the Treaty on the Functioning of the European Union) are not included in the list of legislation which may trigger a class action (see annex). Given the exhaustive nature of the list, this may mean that it will only be possible to bring a class action to obtain compensation for a violation of the Belgian and not the EU competition rules (this restriction may however be regarded as a violation of general principles of EU law).
The initiative to promote damages claims in the area of competition law is in line with recent European legislative developments and initiatives by the European Commission. In June 2013, the European Commission published a Recommendation containing a series of (non-binding) principles for collective redress mechanisms in the Member States, aimed at facilitating access to justice in relation to violations of rights under EU law (such as the competition law rules), by recommending that EU Member States adopt a collective redress system. Earlier this year, on 17 April 2014, the European Parliament adopted the text of a Directive on Antitrust Damages Action (final approval by the EU’s Council of Ministers is pending), which is intended to advance private actions for damages in the EU Member States.
Annex: overview of the European regulations or domestic laws that may trigger a class action