On 18 May 2017, the Chamber of Representatives of the Federal Parliament (Kamer van volksvertegenwoordigers / Chambre des Représentants) adopted a bill facilitating actions for damages resulting from a competition law infringement. This bill inserts a third chapter on “Actions for damages following competition law infringements” in Book XVII of the Code of Economic Law (Wetboek van Economisch Recht / Code de droit économique) concerning “Specific jurisdictional procedures”.
The bill implements Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States, and of the European Union. The deadline for the implementation of the Directive was 27 December 2016. Belgium was therefore under time pressure to implement this Directive into Belgian law and closely follow other Member States such as Austria, France and Germany, which also only recently adopted implementing legislation.
The bill provides that victims of a cartel have a right to full compensation as to the injury suffered (which is the rule under Belgian law). The bill introduces into Belgian law a rebuttable presumption that cartels cause harm. It also creates a non rebuttable presumption of existence of an infringement of competition law, if such an infringement was established in a final decision of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence) or the Brussels Court of Appeal (Hof van Beroep te Brussel / Cour d’appel de Bruxelles).
In addition, the bill makes it easier for claimants to gather supporting evidence. The bill grants courts the power to demand that a party, or even a third party to the case (such as a competition authority), produce any type of evidence requested, with the exceptions of leniency applications (and any reference thereto) and settlement proposals.
Finally, the bill introduces into Belgian law the concept of a passing-on defence and establishes the principle of joint liability for authors of an infringement of competition law, with an exception for SMEs and for immunity applicants. As a result, SMEs and immunity applicants are in principle only liable vis-à-vis their own customers and/or suppliers (and not vis-à-vis any other victim of the cartel, unless these victims cannot obtain compensation from other cartel participants). The principle of joint liability is also limited vis-à-vis infringers who settle the dispute with the victim. Such settlements also suspend the statute of limitations for damages procedures for a maximum of two years.
The bill should enter into force 10 days after it is published in the Belgian official gazette (Belgisch Staatsblad / Moniteur Belge).
