Belgium
Implementation of the European Directive on representative actions
Which national regulations transpose the Directive into national law?
The current Belgian class action regime has been introduced by the Act of 28 March 2014 regarding collective redress and already meets most of the requirements set forth in the Directive (art. XVII.35 and f. Belgian Economic Code). At the beginning of 2024, no national draft bill transposing the class Action Directive is publicly available. Therefore, the following answers are based on the current regime at the time of writing.
Who is entitled to bring a representative action?
Whether a group of consumers or group of SMEs which are aggrieved by a common cause may initiate a class action;
the group representative for claims of consumers must be either:
- An association representing consumers’ interests and aggregated by the Minister of Economic Affairs;
- An aggregated non-profit association which purpose is directly linked to the consumers’ interests in collective redress matters and that exists for more than three years at the moment the action is initiated;
- The public service of the Ombudsman;
- A representative body that is recognized by a member state of the European Union or the European Economic Area to act in collective redress cases.
the group representative for claims of SME must be either:
- An interprofessional association that defends the SME’s interests and that is aggregated by the government;
- An non-profit association which purpose is directly linked to SME’s interests in collective redress matters and that exists for more than three years at the moment the action is initiated;
- A representative body that is recognized by a member state of the European Union or the European Economic Area to act in collective redress cases.
What can be the subject matter of a representative action?
Class actions are currently allowed for claims relating to the following matters:
- The Belgian economic code (Competition; pricing of products and services; Market practices and consumer protection; Payment and credit services; Safety of products and services; Intellectual property; Electronic economy services);
- Medicinal products;
- Supply of gas and electricity and organisation of the market of gas and electricity;
- Construction of houses and selling of houses to be build;
- Foodstuffs and consumers’ safety;
- Liability insurance for motor vehicles;
- Product liability;
- Data protection;
- Travel services per flight, train, ship or bus;
- Amicable recovery of consumer debts;
- Fraud relating to the mileage of cars;
- Consumer sales;
- Electronic communications;
- Protection of consumers with regard to radio transmission and broadcasting services;
- Free of charge securities/guarantees;
- Resale of tickets for events;
- Protection of consumers in relation to timeshare contracts, long-term vacation products, resale and exchange;
- Abuse of dominant position of undertakings and agreement which impede free competition.
Which individual consumers are represented in a representative action?
The group of claimants whether consumers or SMEs can choose to opt for an opt-in or opt-out system. The choice must be motivated and indicated in the petition.
In case of claims regarding compensation of physical or moral collective damage or where group members (SME or consumer) do not have their main place of establishment or residence in Belgium, the opt-in system is always imposed.
The Court will indicate in the admissibility decision or in the agreement of collective redress the timeframe within which group members can chose to be excluded from the group.
In case of class actions made by a group of consumers which have chosen the opt-in system the court will rule out on the timeframe which cannot be inferior to 30 days and superior to 3 months.
What will be the outcome of a representative action?
The court shall at first decide on the merits. If the parties do not settle on this basis, the court shall decide on the quantum and the modalities of the payment. Only the actual loss suffered will be compensated.
In some cases, the court can set up a global amount of compensation, if necessary by subcategory of members, to be shared between the members of the group or an individualized amount, due to each consumer and/or to each SME. The terms of the compensation may vary according to the possible sub-categories of the group.
Are there particular rules for the disclosure of evidence?
No, the common Belgian law rules regarding the disclosure of evidence will apply.
Is third party funding possible?
Third party funding is not forbidden.
Conclusion
The preliminary bill (“avant- projet de loi / voorontwerp van wet”) modifying the Belgian Economic Law Code aiming to the transposition of the Directive 2020/1828 into Belgian law is not yet publicly available. Based on some press reports, law scholars and opinions of committees, it appears that a series of amendments are suggested :
- Class actions will be permitted not only to cease illegal conduct but also to seek compensation for collective redress.
- The material scope of class actions would be extended to cover various regulated areas, including data protection, travel and tourism, financial services, energy, telecommunications, health, and the environment.
- Conditions to be recognized as a qualified entity would be modified. Consumer organizations could initiate class actions without individual consumers having suffered loss or damage and without malicious intent or negligence from the company.
- Ad hoc qualified entities could be established in view of protecting interests of consumers in a specific case. This possibility does not seem to be foreseen for protecting interests of SMEs.
- A distinction between qualified entities entitled to bring domestic actions and those entitled to bring cross-border actions will be created, the latter entities must satisfy harmonised criteria within the EU.
- Class action petitioners would be required to disclose third-party financing for the class action procedure in the petition.
- Financial assistance to qualified entities and representatives defending the collective interests of SMEs could be granted by the State. It seems also that such financial aid would have to be reimbursed if class action proceedings are voluntarily terminated, without having obtained a judgment on the merits or an agreement on the compensation for the collective redress.
Further to the above, the Belgian government seems to go further and discuss, among other, the below possibilities:
- Currently, when a court assesses the admissibility of the class action procedure, except in two specific cases where opt-in is mandatory ((1) where the action seeks compensation for personal injury or moral damage and (2)where group members do not have their habitual residence in Belgium ), the court may choose between an opt-in or opt out system and the modalities thereof. Discussions indicate a shift towards making the opt-out system mandatory, except in the two abovementioned exceptions.
- Considering the current delay in rendering decisions on the admissibility of class action procedures, there is a proposal for a summary proceeding ( 735§2 and 1066 of the Belgian Judicial Code) under which the case would be heard at the preliminary hearing or at least within a short timeframe and where if any, submission calendar should provide short timeframes.
Keep in mind that the details may evolve as the legislative process unfolds, and it would be essential to review the final text of the amended law once it is publicly available.
Contact
Jozef Nijns
T: + 32 2737 9348 E: jozefnijns@eversheds-sutherland.be
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