All questions

Litigation

i Forum

Product liability cases are tried before the general civil court system in Belgium. This court system consists of four distinct levels of ordinary courts:

  1. the justices of the peace;
  2. the courts of first instance, the labour courts and the enterprise courts;
  3. the courts of appeal; and
  4. the Court of Cassation.

The justices of the peace are the lowest civil courts. Since they only have jurisdiction over local matters and claims below €5,000, they will only deal with minor product liability cases. Judgments rendered by the justices of the peace can only be appealed if the value of the claims concerned exceeds €2,000. Appeals against judgments of a justice of the peace are generally heard by the courts of first instance, unless where both parties are enterprises under Belgian law, in which case appeals are heard by the enterprise courts.

The courts of first instance are Belgium's general courts and are divided into a section for cases regarding minors and family law, a criminal section, known as the criminal court, which has jurisdiction over certain criminal offences, and a civil section, which has general jurisdiction over all civil claims not exclusively attributed by law to other courts.

The enterprise courts only deal with disputes between or against enterprises (i.e., persons who permanently pursue an economic goal), which by definition includes most commercial enterprises. The main benefit of appearing before the enterprise courts is that the court is partially composed of lay judges, who are themselves business people and therefore have more knowledge of commercial practice.

Appeals against decisions by the courts of first instance and the enterprise courts are heard by the courts of appeal, unless the value of the claim concerned does not exceed €2,500, in which case the judgment becomes final immediately. Appeal judgments of the courts of first instance or the enterprise courts against judgments of the justices of the peace cannot be appealed any further. The courts of appeals may, within the limits of the appeal lodged by the appellant, re-examine the facts and thus are not bound by the interpretations made by lower courts.

Against a judgment in second instance, a party may commence proceedings before the Court of Cassation, the highest court in civil and criminal matters. The Court of Cassation's scope of review is limited to procedural issues and the correct application of substantive law. As such, the Court of Cassation must accept the facts it is presented with as they are set out in the appeals judgment. If a judgment is quashed by the Court of Cassation, it is referred back to a court at the same level as the court that rendered the judgment.

ii Burden of proof

The general evidentiary rule of Article 870 of the Judicial Code states that each party should furnish evidence of the facts it relies on.

Claims under the Product Liability Act

The Product Liability Act created a system of faultless liability, meaning that a producer will be liable as soon as it is proven that damage has resulted from a defect present in its product, regardless of whether it committed a fault.

According to Article 5 of the Product Liability Act, an injured party may prove that a product is defective by proving it does not provide the safety that a person is entitled to expect, taking all circumstances into account. Thus, a product may be considered defective even though it operates in accordance with its design, but where it is presented in such a way that the user of the product may expect it to be safer than it is in reality; however, a product cannot be considered defective for the sole reason that a better product is subsequently put into circulation. The determination of the presence of a defect will thus be heavily fact-driven. However, where it is found that products belonging to the same group or forming part of the same production series have a potential defect, it is possible to classify as defective all products in that group or series, without there being any need to show that the product in question is defective.

Apart from proving the presence of a defect, an injured party will also have to establish that a sufficient causal link existed between the defect and the damage suffered, such that the presence of the defect was a necessary condition for the damage to arise. Finally, an injured party will have to prove the damage it suffered.

Tort claims

As opposed to liability under the Product Liability Act, liability under tort law is not faultless. Articles 1382 and 1383 of the Civil Code, the legal basis for the tort of negligence, states that a person will be held to repair the damages caused by his or her fault or omission. A fault can generally be proven by demonstrating that the tortfeasor violated either of two standards: either it violated an obligation imposed on it by the law, or it neglected to behave as a normal, careful and prudent person placed in the same situation would have.

The process of proving such a fault is, in some circumstances, made easier by the implementation of Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety into the Belgian Code of Economic Law. Article IX.2 of that Code of Economic Law contains the obligation for producers to place only safe products on the market. A violation of that obligation may be considered a fault under Article 1382 of the Civil Code.

As with claims under the Product Liability Act, an injured party will also have to prove that the fault was a necessary condition for the damage to arise and that it suffered harm.

Contractual claims

To sufficiently prove its claim in contract, an injured party will have to prove that a defect existed in the product that is the subject of the contract of sale. The standard of proof that the buyer has to meet in this regard is that a characteristic of the product makes it unsuitable for the purpose for which it is intended or less suitable for that purpose, to the extent where the buyer would not have bought the product had he or she known the characteristic. The buyer will also have to prove that that characteristic was already present in its incipiency at the time of the sale.

A claim lodged for breach of a consumer contract, based on Article 1649 quater of the Civil Code, requires that the consumer establish that the product was not in conformity with the contract of sale (e.g., because the goods are not of the quality that is normal in goods of the same type and that the consumer could reasonably expect, given the nature of the goods).

The injured party will again have to prove that a sufficient causal link existed between the breach of contract and the damage, and that it suffered harm.

iii DefencesClaims under the Product Liability Act

Article 8 of the Product Liability Act states that a producer cannot be held liable when it proves that:

  1. it did not put the product into circulation;
  2. having regard to the circumstances, it is probable that the defect that caused the damage did not exist at the time the product was put into circulation by it, or that the defect came into being afterwards;
  3. the product was neither manufactured by it for sale or any form of distribution for economic purpose nor manufactured or distributed by it in the course of its business – this effectively requires the producer to prove that the production of the product was both non-commercial and non-professional in nature;
  4. the defect is owing to compliance of the product with mandatory regulations issued by public authorities;
  5. the state of scientific and technical knowledge at the time when the producer put the product into circulation was not such as to enable the existence of the defect to be discovered; or
  6. the defect is attributable to the design of the product in which the component has been fitted or to the instructions given by the manufacturer of the product.

Article 10, Section 1 of the Product Liability Act prohibits the producer from contractually creating additional grounds of defence.

Article 12 of the Product Liability Act provides a limitation period of three years for claims, starting on the day on which the injured person becomes aware, or should have been aware, of the damage, the defect and the identity of the producer, and in any event claims cannot be brought upon the expiry of a period of 10 years from the date on which the producer put the product into circulation.

Tort claims

Against a claim in tort, a producer can only defend itself by proving that its fault was owing to force majeure (i.e., an unforeseeable and irresistible event that made it impossible for the producer to not behave in the way it did).

Tort claims are time-barred, on the basis of Article 2262 bis of the Civil Code, five years after the day on which the injured person became aware of both the damage and the identity of the tortfeasor, and in any event 20 years after the day on which the tort was committed. Tort claims are therefore subject to a longer limitation period than claims under the Product Liability Act.

Contractual claims

A producer might similarly defend itself against a claim in contract by proving force majeure. The statute of limitations on contractual claims expires after 10 years.

iv Personal jurisdiction

For proceedings brought before 10 January 2015, the international jurisdiction of Belgian courts is determined on the basis of Council Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation). For cases brought after 10 January 2015, international jurisdiction is determined on the basis of Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (the Brussels I Recast), which superseded the Brussels I Regulation, but leaves much of its rules for establishing jurisdiction untouched.

Claims against persons domiciled within the European Union must, on the basis of Article 2 of the Brussels I Regulation and Article 4 of the Brussels I Recast, be brought before the courts of the Member State of domicile of that person; however, exceptions to this general rule exist.

First, if the injured party is in a contractual relationship with the producer of the product, Article 5.1(a) of the Brussels I Regulation and Article 7.1(b) of the Brussels I Recast allow it to sue before the courts of the Member State where the defective product was delivered. Furthermore, Article 16.1 of the Brussels I Regulation and Article 18.1 of the Brussels I Recast allow the injured party, should it be a consumer, to sue the party with which it contracted before the Member State of its own domicile, if its counterparty pursues commercial or professional activities in that Member State, and the contract falls within the scope of those activities.

Second, if the injured party is not in a contractual relationship with the producer of the product, Article 5.3 of the Brussels I Regulation and Article 7.2 of the Brussels I Recast allow it to lodge a claim in tort before the courts of the Member State where the harmful event occurred.

For claims falling outside the scope of the Brussels I Regulation (those against a producer not domiciled within the European Union), the Belgian Code of Private International Law is applicable. Article 5 of that Code again states the general rule that a defendant should be sued before the courts of its domicile. However, if a contractual relationship exists between an injured party and the producer of a defective product, the injured party may sue before the Belgian courts if the contractual obligation concerned was created in Belgium or was to be performed in Belgium. Where no contractual relationship exists between the injured party and the producer, the producer may be sued in tort before the Belgian courts if either the tort was committed or the damage occurred in Belgium.

v Expert witnesses

Expert witnesses are frequently appointed by courts, especially in product liability cases, which by their nature concern technical or specialist issues. Courts are rather reluctant to rely on the findings of experts who conduct their inquiries at the request of one of the parties alone, as they are suspected of bias. Courts will therefore usually appoint independent court experts, which they can do at the request of one of the parties or of their own motion. These court experts will allow the parties to comment on a draft report, produce evidence they consider relevant and ask additional questions, to ensure that each party's viewpoint is taken into account. In the majority of cases, the conclusions drawn in the court expert's final report are accepted by the court as fact.

vi Discovery

Belgian law does not provide for the possibility of discovery or depositions as they are known in common law jurisdictions. Parties have to produce those documents that they consider necessary to substantiate their claims themselves, and are not under an obligation to produce any documents that would contradict their claims.

Belgian law does know one general exception to this rule. Article 877 of the Judicial Code allows a court, of its own motion or at the request of one of the parties to the dispute, to order the production of a document, regardless of whether it is held by a party to the dispute or a third party, where there are serious, precise and concurring presumptions that that party is in possession of the document and that the document contains evidence of a fact that is relevant to the case.

vii Apportionment

Where multiple parties would be held jointly and severally liable by a court for the same error or for separate errors that caused the damage to the injured person, the injured party may claim payment of his or her entire damage from one liable party.

That party may then claim contribution in that payment from the other liable parties, each having to contribute in proportion to the gravity of the contribution of their fault to the causation of the damage. The risk of insolvency of one of the liable parties is borne by the other liable parties, such that where one of the liable parties defaults on his or her contribution in the damages, the others will have to distribute this loss among themselves. Thus, where multiple parties are held liable, the injured party is protected against the insolvency of one of the liable parties, since it can claim full payment from the most solvent liable party.

viii Mass tort actions

Actions for collective redress became available under Belgian law by the entry into force on 1 September 2014 of the Act of 28 March 2014 on the insertion of a Title 2 'Actions for collective redress' into Book XVII of the Code of Economic Law. Actions for collective redress are only available to specific group representatives acting for consumers or SMEs whose claims are based on specific statutes, and only for cases where the cause of the collective harm occurred after 1 September 2014. Pursuant to Articles XVII.36 and XVII.37 of the Code of Economic Law, the Product Liability Act is included in this list of specific statutes on which a class action may be based.

Whether the class action requires plaintiffs to opt in or opt out is, for Belgian plaintiffs, left up to the discretion of the court; however, an opt-in system must always be used for foreign plaintiffs. An action for collective redress can only be brought by a group representative, which may be either an organisation that is part of the special advisory council on consumption or the High Council for Self-Employed Persons and SMEs, the Federal Ombudsman for Consumer Affairs, or any organisation authorised by the Minister, or any non-profit organisation authorised to act as a representative body in another Member State of the European Union or the European Economic Area.

Before the court assesses the class's claim on its merits, it must first set a period during which the group representative and the defendant must negotiate on a collective settlement. If a settlement is reached and receives court approval, it becomes binding on the entire group. Only when no such settlement can be reached will the court hear the case on its merits.

In addition to the possibility of an action for collective redress, actions brought separately by different persons but having the same object may be joined where the court considers it beneficial.

ix Damages

Belgian law turns on the principle that damages should place the injured party in the same position it would have found itself in had the event causing the damage not occurred. This includes not only damages for costs that have actually been incurred owing to the injury, such as hospitalisation and recovery costs, but also non-economic (moral) damages for pain, suffering and disfigurement. Punitive damages, however, cannot be awarded. There is no cap as to the amount of damages recoverable under Belgian law.

Under the Product Liability Act, damages for personal injury are subject to the general principles of Belgian law (i.e., that both costs incurred and moral damages must be awarded), but damages suffered to goods may only be awarded if the goods are ordinarily intended for private use or consumption and are used by the injured person mainly for his or her own private use or consumption. Even when damage to goods satisfies these two conditions, damages may only be awarded for the amount exceeding €500, so that the injured party must bear the first €500 in losses itself.