Class Actions in Belgium—Change on the Way

Overview

The Belgian law on class actions ("actions en réparation collective") has been in effect since September 1, 2014. While originally only available to consumers, the Belgian legislature extended its reach in June 2018 to cover SMEs (as defined in EU Recommendation 2003/361/EC).

Under this Belgian law, class actions are allowed for certain specifically enumerated types of damage claims. The most important of these are contracts, competition, product liability, trade practices, and consumer protection in relation to pharmaceuticals, transportation, privacy, electronic communications, and payment and credit services.

Class Action Procedure in Belgium

Class actions in Belgium must seek damages to benefit the members of the class, who must be represented by an authorized representative. Authorized consumer protection associations may also seek cease and desist orders on behalf of consumers. However, such cease and desist proceedings are not class actions per se and are not governed by class action legislation.

The so-called "enterprise courts" of Brussels have exclusive jurisdiction over class actions, which have four successive phases:

1. Admissibility. The court assesses whether the claim qualifies for collective redress, whether the class representative is adequate, and whether the class procedure will be efficient. The court has the discretion to declare the claim inadmissible if it determines that a class action will not be more efficient than standard court proceedings.

When the claim pertains to moral damage or physical injury or to claimants living abroad, the opt-in system applies automatically. In all other cases, the court may choose between an opt-in or opt-out system and the modalities thereof. According to the preparatory works, the choice should be based on the facts of the case, the type of damages claimed, the interest of the claimants and of the market, as well as the parties' observations.

2. Negotiation. The parties must then explore a potential settlement during the period designated in the above-referred admissibility ruling (minimum of three months to a maximum of 12 months). This mandatory preliminary negotiation phase seeks to incentivize the parties to settle rather than take the claim to trial. If settlement is reached, it must be submitted to the court for approval. 

3. Review and decision on the merits. If no settlement is reached and approved by the court, the court issues a judgment after written and oral arguments. The judgment is subject to appeal.

4. Enforcement. For successful claims, a court-appointed trustee enforces the settlement or judgment.

In practice, few class actions have been filed in Belgium. In five years, only nine class actions were initiated. Of these, only the following three resulted in a decision on admissibility or on the merits:

• A class action against an airline for a flight delay. The court declared the action admissible and chose the opt-in system. The case was closed after the spontaneous compensation of all plaintiffs by the airline.
• A class action against several car manufacturers in the context of "dieselgate." The court declared the action admissible and chose the opt-out system. The negotiation phase is still pending. 
• A class action against a telecom operator for damages resulting from allegedly aggressive and misleading trade practices. The court declared the action admissible, and an opt-out system was applied. Such decision was appealed. On appeal, the court selected an opt-in system and then ruled that the action was ill-founded on the merits.

The most recent class action was filed in July 2019 against an airline for labor strikes that caused significant flight delays and cancellations.

The Proposal for a New EU Directive on Representative Actions—What (Limited) Impact?

In April 2018, the EU Commission adopted a proposal for a directive on representative actions for the protection of the collective interests of consumers. If definitively adopted, the directive will require Belgium to extend the scope of application of class actions to infringements of environmental and health-related legislation. Otherwise, the proposed directive should have limited impact because Belgium's domestic legislation already integrates most of its contemplated modifications.