UPDATE : The bill introducing class actions proceedings in Belgium has been withdrawn by the Minister of Economic Affairs on Thursday 27 February 2014 in the evening. The text was to be voted in the plenary session of the House of Representatives but members of Parliament have argued that the report on the proposed text had been altered by the office of the Minister. We will follow closely the developments on this matter and will refer to you as soon as there is some clarity on the influence of these events on the content of the proposed text.
1. Introduction
The Belgian Government has recently approved and introduced to the Parliament a Bill on Class Actions.
It is expected that the texts1 will be approved, without major modifications, by the Parliament in February or March 2014. A Royal Decree will determine the entry into force of the new laws.
2. Principles
1.1. The class action procedure (action en reparation collective / rechtsvordering tot collectief herstel) is defined by the Bill as the procedure aiming at the redress of mass damage suffered by a group of persons.
1.2. The group of prejudiced persons consists of all consumers who have been individually prejudiced by the collective damage and who will be represented in the collective action. Redress is only available to consumers (natural persons). Group members might or might not reside in Belgium, and they must manifest their wish to opt-in or out of the group.
- The opt-in system (système d'option d'inclusion / optiesysteem met inclusie) is a system whereby the plaintiffs are members of the group who have indicated their wish to be a member of the group;
- The opt-out system (système d'option d'exclusion / optiesysteem met exclusie) is a system whereby all consumers who were prejudiced are members of the group unless the consumer has indicated that he or she does not wish to be a member of the group.
1.3. The collective action will be introduced by a group representative (représentant du groupe / groepsvertegenwoordiger) which is either an association that is recognized by the government in order to act in the name of the group throughout the proceedings or an autonomous public service.
1.4. The Court of First Instance of Brussels or (if the plaintiffs choose so) the Court of Commerce of Brussels has exclusive material jurisdiction to hear and rule on the class actions proceedings. Appeal against the decision of either court should be brought before the Court of Appeal of Brussels.
1.5. Class action proceedings can only be pursued if the common cause of the collective damage took place after the new law has entered into force.
3. Outline of class action proceedings
Two types of proceedings are available, and which type should be pursued depends on whether the parties have reached an agreement on the dispute.
A. The admissibility of the claim (common to both types of proceedings)
The Court will examine whether the specific admissibility criteria of a class action are met and whether class action proceedings are more suitable than normal civil proceedings for the given case.
The Court's decision must contain the following, among other things:
(i) the description of the mass damage;
(ii) the cause of this mass damage;
(iii) the description of the group and, as precise as possible, an estimation of the number of plaintiffs;
(iv) which option system will apply (opt-in or opt-out) and the deadline for the potential plaintiffs to exercise such option (the length of the opt-in or opt-out period will be minimum 30 days and maximum 3 months);
(v) the timeframe that the parties have for negotiating an amicable settlement on the collective redress (which should be between 3 and 6 months and is called a "cooling off" period).
The Court's decision will be published in the Belgian State Gazette and on the website of the Federal Public Service for Economy, SMEs, Self-Employed, and Energy.
B. Confirmation of a collective settlement agreement
The Court will examine whether the amicable settlement contains all elements requested by law, and if it is acceptable on the merits, for instance, whether the damages granted to the group or some of its members are not unreasonable. If the terms of the amicable settlement are considered incomplete or inadequate concerning some aspects, the Court could request the parties to have the settlement modified accordingly before its final approval.
The judge's decision which confirms the amicable settlement will be published in the Belgian State Gazette and on the website of the Federal Public Service for Economy, SMEs, Self-Employed, and Energy. The period to opt in or opt out starts from the day after the decision is published.
C. The adversarial proceedings on the merits
The Court will judge the merits of the case:
- if negotiations failed during the timeframe set out in the decision on the admissibility of the case;
- if the parties did not modify or complete their agreement as requested by the judge; or
- if the judge has refused to confirm the amicable settlement agreed by the parties.
The parties will submit their arguments on the limitation period, the misconduct, the damage, the causal relationship and the form taken by the redress. If the Court finds that the class action is well-founded, it will determine the precise manner of damage restitution. Redress can be monetary or in kind.
The judge's decision will be published in the Belgian State Gazette and on the website of the Federal Public Service for Economy, SMEs, Self-Employed, and Energy.
The Court's decision on the merits will bind all members of the group (i.e., these are persons that have either not opted-out or have opted-in depending on the judgment concerning the admissibility of the claim) unless an individual proves that he or she had or could have had no knowledge of the admissibility judgment.
D. The execution of the judgment
The Court will appoint an "execution administrator" (liquidateur / schadeafwikkelaar) who will be in charge of ensuring that the amicable settlement or the redress judgment is executed. This administrator's most important task will be to allocate the right sum of damages to members of the group. The administrator's final report on the execution of his or her duties will be submitted to the judge, the group representative, and the defendant. This report is also subject to the same publication requirements as all decisions that have been made throughout the proceedings.
1 The Belgian proposal consists of two parts which are to be added to the new Belgian Code on Economic Law in Book XVII under "Special Judicial Proceedings"; see Doc 53K3300 and Doc 53K3301, www.lachambre.be.
