On June 12 2017 the act transposing the EU Damages Directive (2014/104/EC) into Belgian law was officially published.
The EU Damages Directive sets out rules which ensure that any party which has suffered harm caused by an infringement of competition law can effectively exercise the right to claim full compensation. The directive seeks to establish a level playing field throughout the European Union and includes provisions on:
- the disclosure of evidence;
- the proof of infringement;
- the passing-on of overcharges;
- liability; and
- the effect of national competition authority decisions.
The directive was implemented by introducing a new chapter to the Code of Economic Law, which largely copies the directive's provisions. The most important changes for the Belgian practice are discussed in more detail below.
Article 17(2) of the directive establishes a rebuttable presumption that cartels cause harm. Up until now, such a presumption did not exist under Belgian law, which proved to be a hurdle for claimants to establish the existence of damage, as evidenced by the judgments of the Brussels Commercial Court in the cartel damages claims of the Belgian state and the European Union against members of an elevator cartel (for further information please see "Brussels court deals blow in fight for damages against elevator cartel"). The implementation of the directive in Belgium shifts the burden of proof of the absence of harm to the cartelists, which will need to demonstrate that their cartel did not cause harm to the claimants.
Notably, the definition of 'cartel' included in the legislature goes beyond what the directive requires. In the directive, a 'cartel' is defined as "an agreement or concerted practice between two or more competitors", whereas the Code of Economic Law defines it as "an agreement or concerted practice between two or more competitors – and, if need be, one or more other non-competitors". This broader concept is in line with the Belgian Leniency Notice, which uses this same broad definition of a cartel.
The directive requires that a national competition authority's final infringement decision constitutes:
- full proof that the infringement occurred before the civil courts in the same EU member state; and
- at least prima facie evidence of the infringement before the courts of other EU member states.
The binding force of the Belgian Competition Authority's decisions before the Belgian courts has long been the subject of discussion. With the directive's implementation, the binding effect of the authority's decisions before the Belgian courts now has a legal basis.
As a result of the directive, EU member states must ensure that their national courts have effective measures at their disposal to protect confidential business information when ordering the disclosure of such information. The Belgian judicial code contains no specific procedure protecting confidential information and business secrets in a civil procedure. However, Belgian case law and legal doctrine have never a priori excluded the protection of confidential information and business secrets – rather, they considered that a weighing of interests had to be made. The Code of Economic Law now explicitly empowers the courts to order the disclosure of confidential information, provided that effective measures are taken in order to protect the confidential nature. In this regard, a non-exhaustive list of possible measures (eg, redacting confidential information, limiting the group of individuals that have access to the information or requesting the submission of non-confidential versions of documentation) provides guidance to the Belgian courts.
The limitation period for introducing an action for damages provided for in the Code of Economic Law goes beyond what the directive requires. Where the directive requires that the limitation period "shall not begin to run before the infringement of competition law has ceased", the Belgian legislature extended this requirement with regard to continuous and recurrent infringements. In that case, the infringement is presumed to have ceased only on the day of the last infringement.
The substantive rules of the Belgian implementation act (ie, regarding the presumption of harm and liability) apply to competition law infringements that occur after June 22 2017. The procedural rules (ie, regarding the evidence and effect of decisions) apply to all actions introduced after December 26 2014, even when they concern competition law infringements that occurred before June 22 2017.
Finally, the Belgian implementation act extends the material scope for bringing a collective action in Belgium to violations of Articles 101 and 102 of the Treaty on the Functioning of the European Union. Previously, the law referred only to violations of the corresponding provisions of Belgian competition law.
For further information on this topic please contact Koen Platteau, Geneviève Borremans or Nina Mampaey at Simmons & Simmons by telephone (+32 2 542 0960) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Simmons & Simmons website can be accessed at www.simmons-simmons.com.
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