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Belgium

Author: Olivier Vanhulst

I. Factsheet

Scope

No general collective redress mechanism.

Collective redress is available for consumer claims.

Multiple claims may be joined together under the regular rules of civil procedure.

Problems/Incompatibilities with Recommendation principles

Limited development of collective redress.

The law introducing consumer collective actions does not provide for specific rules on injunctive relief.

Standing

Collective redress procedures can only be initiated by a 'group representative'.

This may be either:

(a) a consumer organisation recognised by the Ministry for Economic Affairs.

(b) a recognised association with a corporate purpose directed at collective damages.

(c) Federal Ombudsmen.

March 2018 Law, which amends the 28 March 2014 law, recognises three categories of possible group representative that are entitled to represent the self-employed and SME's:

(a) an inter-professional defence organisation of the interests of SMEs that has legal personality, provided it either sits on the Higher Council of the self-employed and SMEs or that it is approved on the basis of criteria to be determined by a royal decree approved in the Council of Ministers;

(b) an association that has had legal personality for over three years, has a corporate purpose directly related to collective damages, does not pursue an economic purpose in a sustainable manner and is recognised by the Minister of Economic Affairs; or

(c) a representative entity approved by a Member State of the European Union or of the Economic Area to act in a representative capacity and who meets the conditions of point 4 of the Recommendation 2013/396/EC.

Admissibility

The claim's admissibility is decided at the first stage of proceedings and in principle within 2 months of the filing of the claim.

A collective action will only be declared admissible when it can be shown that collective proceedings will be more effective than ordinary proceedings.

Information on Collective Redress

The legislation provides that judgments must be published in the Belgian Official Gazette and specified official websites.

Information on ongoing proceedings is only available through private sources.

Problems/Incompatibilities with Recommendation principles

No national registry is available.

Funding

Third-party funding is not prohibited but it is very rare since group representatives are not entitled to make a profit.

Funding is provided by consumer associations through their own funds.

Problems/Incompatibilities with Recommendation principles

There is no obligation on the claimant to disclose its source of funding.

Third-party funding is not regulated.

Cross Border Cases

Foreign claimants may participate in collective proceedings on the same terms as domestic claimants, however, they must choose to opt-in to the proceedings.

Expedient procedures for injunctive orders

Injunctive orders are dealt with by the regular rules of civil procedure, which provide for summary proceedings to be expedited where necessary.

Parties can apply on a ex parte basis for interim measures where there are exceptional circumstances or urgency.

Efficient enforcement of injunctive orders

The enforcement of Injunctive orders is dealt with under the regular rules of civil procedure. Penalties, including periodic fines, can be imposed by the court for non-compliance.

Opt-In/Opt-Out

Availability of both options.

Primarily it is for the parties to decide which system they use. However, where no agreement is reached the court has a wide discretion to decide which procedure to employ in order to best protect the consumers' interests.

An opt-in procedure is compulsory where the aim of the proceedings is to obtain damages for physical or moral harm.

The opt-in system is limited to domestic claimants.

Collective ADR and Settlements

Following the declaration of admissibility and the time period for opting in or opting out, the court will grant the parties a period of 3 to 6 months in which they are mandated to negotiate.

Any settlement requires the approval of the court.

Problems/Incompatibilities with Recommendation principles

Mandatory negotiation without the consent of the parties.

Costs

The Loser Pays Principle applies.

Costs are set by the law according to the amount at stake in the claim.

Lawyers' Fees

A reasonable and proportionate success fee can be agreed.

However, agreements, whereby a lawyer's fees will depend solely on the outcome of the case, are prohibited.

Problems/Incompatibilities with Recommendation principles

Funding arrangements with lawyers are not subject to the approval of the court.

Prohibition of punitive damages

Extra-compensatory damages are not available.

Collective Follow-on actions

Collective follow on actions are not available.

The interplay between injunctions and compensation across all sectors

It is possible to apply for both compensation and an injunction in the same proceedings, however, it is more common for an injunction to be obtained at an interim stage.

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