This country-specific Q&A provides an overview to competition litigation laws and regulations that may occur in Belgium.
This Q&A is part of the global guide to Competition Litigation. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/competition-litigation/
What types of conduct and causes of action can be relied upon as the basis of a competition damages claim?
Competition damages claims can be brought for violations of all types of anti-competitive behaviour, be it agreements restricting competition (on the basis of Article 101 TFEU or Article IV.1 of the Belgian Code of Economic Law (“CEL”)) or the abuse of a dominant position (Article 102 TFEU or Article IV.2 CEL). Per EU Regulation 1/2003, Articles 101 and 102 TFEU are directly applicable before the national courts, thus permitting victims to claim compensation for damage resulting from the infringement of EU competition rules before the national courts.
As of 1 June 2020, damages claims will also be available to companies whose economic dependency is abused by the company which they are dependent on, provided that competition on the Belgian market, or a substantial part thereof, is affected (on the basis of a new Article IV.2/1 in the Code of Economic Law).
Prior to the transposition of Directive 2014/104/EU by the Act of 6 June 2017, damages claims followed the general principles of civil liability law. As such, they had to be based on Articles 1382 of the Civil Code (for extra-contractual claims) or on Articles 1142 and 1184 of the Civil Code (for contractual claims). Under those articles, there was no presumption of damages for cartel infringements and only a limited possibility for forced production of individual documents.
The Act of 6 June 2017 has now altered this situation: while competition damages claims must still be based on the relevant articles of the Civil Code, some of the general rules applicable to those claims have now been supplemented in competition damages cases, for instance to create a presumption of damages in cartel infringements and a wider possibility for forced production of categories of documents. The substantive rules added by the Act of 6 June 2017 entered into force on 22 June 2017 and are applicable to acts carried out after this date. The new procedural rules, however, apply to any proceedings initiated after 26 December 2014.
What is required (e.g. in terms of procedural formalities and standard of pleading) in order to commence a competition damages claim?
Generally speaking, claimants will have to evidence that the defendant has committed an infringement of competition law, which caused the claimant to suffer losses. The standard for proving causality is a “but for” standard, meaning that the claimant must prove that he would not have suffered the losses but for the infringement. However, in cartel damages claims, Article XVII.73 CEL creates a presumption that the infringement has caused losses, which the defendant may rebut.
Procedurally speaking, claims for competition damages may be brought by one of two types of claimants:
- First, by claimants who have a personal interest in bringing the claim, for instance because they are the party which suffered the loss or because they are the assignee of a claim for damages. Claims introduced by associations to safeguard a general interest are not allowed under Belgian law, unless they are intended to protect human rights or fundamental freedoms.
- Second, by a group representative in the framework of a proceeding for collective redress. However, Belgian law limits the possibility for a person to act as a group representative to specific categories of entities enumerated in the law (which mostly concern non-profit organisations whose goal is the promotion of consumer or SME rights), and only if the court decides that the group representative is suited to act as a group representative in that specific matter, taking into account a range of circumstances.
What remedies are available to claimants in competition damages claims?
A full range of remedies is open to claimants in competition damages claims. In contractual matters, the claimant can ask for the full performance of all contractual obligations by the defendant, if need be on pain of penalty payments, which may fall due periodically (e.g. each day on which the defendant does not perform the contract in case of an abusive termination of a supply agreement). If the contract cannot be performed, the claimant can request damages instead. In case of an extra-contractual claim, the claimant can obtain damages and/or an injunction for the defendant to act in a certain way.
Furthermore, claimants may also bring cease-and-desist proceedings, which are a type of accelerated proceedings after which the court may order a defendant to cease an act or omission which it considers an infringement of competition law. However, no damages may be awarded in this type of proceedings.
During the proceedings to obtain relief, the claimant can safeguard his rights by obtaining interim relief from the court. Interim relief measures may consist of any measure which safeguards the rights and interests of the parties until the court has rendered a final decision on the merits, such as, for instance, the temporary continued performance of a contract or the temporary abstention from an act. They may not, however, amount to a final or irrevocable settlement of the parties’ situation – interim measures must therefore always be reversible.
What is the measure of damages? To what extent is joint and several liability recognised in competition damages claims? Are there any exceptions (e.g. for leniency applicants)?
Belgian law turns on the principle that damages should place the injured party in the same position it would have found itself in but for the event causing the loss. On the one hand, this means that claimants can recover a wide range of damages, including damages for direct costs that have actually been incurred, loss of profit, loss of opportunity, interests, non-economic (moral) damages and other indirect losses. On the other hand, since all a victim is entitled to obtain are damages that put it in the same position it would have found itself in, punitive damages cannot be awarded. There is no cap as to the amount of damages recoverable under Belgian law.
Where the victim has committed a fault which is at least in part the cause of the loss, the loss will be distributed in accordance with the relative responsibility of each fault for the loss. Punitive damages are not available under Belgian law.
Undertakings and/or associations of undertakings which have breached competition law by their joint action can be held jointly and severally liable for the losses caused by that infringement. The claimant may, in those circumstances claim indemnification for its entire loss from one of the infringers. The paying infringer may then in turn claim contribution in that payment from the other liable parties, each having to contribute in proportion to the gravity of the contribution of their fault to the causation of the loss. The risk of insolvency of one of the liable parties is borne by the other liable parties, such that where one of the liable parties defaults on his or her contribution in the damages, the others will have to distribute this loss among themselves. Thus, where multiple parties are held liable, the injured party is protected against the insolvency of one of the liable parties, since it can claim full payment from the most solvent liable party.
However, this joint and several liability is limited in several regards:
- First, if the infringing party is an SME in the sense of Recommendation 2003/361/EC of the European Commission of 6 May 2003 or has obtained full leniency, it can only be held jointly and severally liable for the losses suffered by its direct or indirect customers or suppliers. For the losses suffered by the other victims of the infringement, that entity can only be held to pay to the extent that those victims cannot obtain full payment from the other jointly and severally liable infringers. However, this exception does not apply to the SMEs which have either (i) played a leading role in the infringement or have forced other infringers to participate or (ii) have already been held guilty of a competition infringement before.
- Second, as far as contribution claims by jointly and severally liable infringers are concerned, an infringer which has received full immunity from fines cannot be held to pay a contribution which is larger than the amount of the losses suffered by its own direct or indirect customers or suppliers. If, however, his infringement has caused losses to other parties, the amount of his contribution cannot exceed the amount which corresponds to his relative responsibility for that loss.
- Third, where a claimant enters into a settlement with one of the infringers and reserves its claim against the other infringers, its claim against these other jointly and severally liable infringers is reduced by the share of the losses caused by the settling infringers. If the other infringers are subsequently ordered to pay damages to the claimant, they will be unable to recover a contribution in those damages from the settling infringer. If the other infringers are not sufficiently solvent to pay those damages to claimant, the claimant may still recover those damages from the settling infringer, unless agreed otherwise in the settlement agreement.
What are the relevant limitation periods for competition damages claims? How can they be suspended or interrupted?
The limitation period for contractual competition damages claims is ten years. For extra-contractual claims the limitation period is five years. These limitation periods start on the first day following the day on which both the infringement of competition law has ceased and the victim is aware or can reasonably be expected to be aware of:
a) the behaviour and the fact that this behaviour constitutes an infringement of competition law; and
b) the fact that the infringement caused damage to the victim; and
c) the identity of the infringer.
For continuous or repeated infringements, the infringement is deemed to have ceased on the day on which the last infringement was ended.
However, for extra-contractual claims, the claim will in any event become time-barred after a period of 20 years starting from the day following the day on which the infringement took place.
The aforementioned limitation periods are interrupted when a competition authority carries out an act of investigation or prosecution of the infringement of competition law to which the action for damages relates. This interruption shall end on the day following the day after the adoption of a final infringement decision or after the proceedings have otherwise been terminated.
In addition, attempts towards an amicable resolution of disputes suspend the limitation periods for bringing an action for damages for the entire duration of the attempt at amicable resolution. This suspension only applies to parties who are involved or have been involved or represented in this procedure.
Which local courts and/or tribunals deal with competition damages claims?
In Belgium, there are no specialist courts to which competition damages claims are assigned. Claimants are required to bring their claims before the ordinary courts that have jurisdiction. This may be either one of the thirteen courts of first instance, which have general jurisdiction over all civil claims which are not exclusively attributed by law to other courts, or one of the nine enterprise courts, which deal predominantly with claims against enterprises (i.e. persons or entities who permanently pursue an economic goal). In practice, most competition damages claims are brought before the enterprise courts.
Appeals against judgments of the courts of first instance or the enterprise courts are brought before one of the five courts of appeal. Some enterprise courts and some courts of appeal have taken the initiative to set up specialised chambers for competition law actions.
The jurisdiction of each court of first instance, enterprise court and court of appeal is geographically determined.
A further appeal, named cassation recourse, may be brought before the Belgian Supreme Court, which will however only review the court of appeal’s judgment on points of law, and will not re-assess the facts of the matter.
Finally, cease-and-desist proceedings must be brought before the president of one of the nine enterprise courts. Interim measures can be requested from either the court dealing with the case on the merits or separately from the president of the court of first instance or of the enterprise court.
How does the court determine whether it has jurisdiction over a competition damages claim?
The Belgian courts will declare that they have jurisdiction when there is a ground for jurisdiction in either the Brussels I Recast Regulation ((EU) 1215/2012) or the Belgian Code of Private International Law, which is applicable to cases outside the scope of the Brussels I Recast Regulation (specifically when no defendant is domiciled in the EU). The most common grounds of jurisdiction are where (i) one of the defendants is domiciled in Belgium, (ii) the infringement or the loss occurred or may occur in Belgium, (iii) a jurisdiction clause exists between the parties to the dispute electing the Belgian courts as the forum for disputes, or (iv) the defendant agrees to appear before a Belgian court.
Within Belgium, actions must generally be brought before the court which has jurisdiction for the judicial district where the defendant is domiciled. Other criteria can also play a role, such as the location chosen by the parties in jurisdiction clauses or the place of the creation or performance of the litigious obligation.
How does the court determine what law will apply to the competition damages claim? What is the applicable standard of proof?
The Belgian courts will determine the law applicable to the competition damages claim on the basis of the Rome I or Rome II Regulations (EU Regulations 593/2008 and 864/2007), or the Belgian Code of Private International Law, which is applicable to cases outside the scope of the Rome I and Rome II Regulations (for instance, for extra-contractual claims, when the facts giving rise to the damage occurred before 11 January 2009).
For extra-contractual claims for acts restricting competition, Article 6 of the Rome II Regulation provides that the applicable law is that of the country where the market is, or is likely to be, affected. However, the claimant may choose to base its claim on Belgian law if the infringer has its domicile in Belgium, provided that the Belgian market is amongst those directly and substantially affected. Where multiple infringers are simultaneously brought before the Belgian courts, the claimant can only choose to have Belgian law govern its claim if the restriction on competition which underlies the claim against each defendant directly and substantially affects the Belgian market.
For contractual claims, Article 3 of the Rome I Regulation provides that the applicable law will generally be the law stipulated in the contract by the parties. In the absence of a choice, the applicable law will differ according to the type of contract, unless it appears from the circumstances that the contract is manifestly more closely connected with a specific country, in which case the law of that country will apply.
The standard of proof under Belgian law is subjective – it allows the court to consider as proven any elements which appear true to his own conviction, meaning it must be personally convinced of their veracity. There are, however, a few limited exceptions to this rule. For instance, in competition damages claims, the court is bound to accept that an infringement has taken place where the European Commission or the Belgian Competition Authority (subject to judicial review by the General Court of the European Court of Justice and the Market Court of the Court of Appeal of Brussels, respectively) have found that there is an infringement. In addition, there is a presumption of damage in case of cartel infringements.
To what extent are local courts bound by the infringement decisions of (domestic or foreign) competition authorities?
Article 16 of EU Regulation 1/2003 provides for an irrevocable presumption that an infringement has taken place where there is a decision of the European Commission stating that an infringement of EU competition law has taken place. In case of judicial review of the European Commission’s decision before the General Court of the European Court of Justice, the domestic court must stay its judgment on the damages proceedings.
Belgian law provides for an irrebuttable presumption that an infringement has taken place where there is a decision of the Belgian Competition Authority or, after an annulment proceeding against a decision of that authority, the Markets Court, that an infringement of competition law has taken place. This means that the court must accept that the fault of the defendant has been established. However, the claimant must still prove the damage and the causal link between the fault (the infringement) and the damage.
A decision of a competition authority of another member state of the European Union finding an infringement of competition law shall be accepted at least as a beginning of proof, meaning that the court must take that decision into account when assessing whether there has been an infringement.
The same decision by a non-EU competition authority does not bind the Belgian court in any way, but it can of course be taken into account by the court if it sees fit.
To what extent can a private damages action proceed while related public enforcement action is pending? Is there a procedure permitting enforcers to stay a private action while the public enforcement action is pending?
Private damages actions can proceed unhindered while a related public enforcement action is pending before the European Commission, the Belgian Competition Authority or another competition authority. However, if the competition infringement also qualifies as a criminal offence (which is the case for bid-rigging in public tenders) and a criminal investigation has been started, the judgment on the damages claim must be stayed as of the beginning of the criminal investigation by an Investigating Magistrate until a final criminal judgment.
What, if any, mechanisms are available to aggregate competition damages claims (e.g. class actions, assignment/claims vehicles, or consolidation)? What, if any, threshold criteria have to be met?
Under Belgian law, actions for collective redress can be brought by a qualified group representative for infringements of Belgian or EU competition law. Only a few specific associations such as certain recognised consumer or SME rights organisations can qualify as group representative and bring such a claim. All general rules for competition damages claims apply to these class actions, except for two: defendants cannot claim that consumers passed on the overcharge to third parties and the proceedings cannot be stayed in case of an attempt for amicable resolution of the dispute (see below).
Furthermore, damages claims may be assigned to claims vehicles, which may then bring those claims to court. However, while claims which are already pending before a court may be purchased, the defendant may, in those circumstances, end the case by paying the amount which the purchaser has paid for the claim.
Finally, several claimants can appoint a single law firm to join their related claims into one writ, starting one proceeding. Belgian courts can also decide to treat similar claims together in one proceeding, and to this end they may join together related claims that were brought before them by separate claimants.
Are there any defences (e.g. pass on) which are unique to competition damages cases? Which party bears the burden of proof?
The pass-on defence is recognised under Belgian law. As such, the defendant in an action for damages may rely on the fact that the claimant has passed on, in full or in part, the additional costs caused by the infringement of competition law, as a defence against a claim for damages. Although this defence already results from general Belgian tort law and is therefore not specific to competition damages cases, specific legal provisions reaffirm it explicitly for this type of cases.
In general, Belgian law provides that the claimant bears the burden of proof and must demonstrate both the reality and the extent of his claim. As such, the claimant would in principle have to prove that damage was not passed on. Similarly, where an indirect purchaser alleges that it has a claim because the damage was passed on to it, that indirect purchaser will have to prove that damage was indeed passed on.
However, Articles XVII.83 to XVII.89 CEL implemented the Damages Directive 2014/104/EU and introduced a system of double presumption aimed at encouraging actions for damages by both direct and indirect purchasers. Indeed, when the action is brought by a direct purchaser, it is for the defendants to prove that the additional cost has been passed on. Conversely, if the action is brought by an indirect purchaser, the latter bears the burden of proof of the passing on of the damage, but is deemed to have provided this proof when he has demonstrated the infringement, the damage for the direct purchaser, and its own purchase of goods or services concerned by the infringement. This is a rebuttable presumption, since the defendant can still demonstrate that the damage was not passed on to the indirect buyer.
A second defence that is specific to competition damages claims is available to certain SMEs or recipients of immunity from fines, against claims that are brought against them and other infringers for joint and several liability. This defence enables them to limit their exposure to the losses suffered by their direct or indirect customers or suppliers (see above, question 4).
Is expert evidence permitted in competition litigation, and, if so, how is it used? Is the expert appointed by the court or the parties and what duties do they owe?
Expert evidence is permitted in competition damages claims. Expert reports can be provided by party-appointed or court-appointed experts.
Belgian courts are reluctant to give much weight to expert evidence given by an expert appointed by one of the parties, except in cases where the other parties do not submit any evidence to contradict the findings of such expert.
The courts have the power to appoint an expert to give evidence. The expert will then have to investigate within the terms determined by the court, and give the court his technical opinion. This expert is independent of the parties, but must hear the parties and allow them to comment on his investigation. In practice, the courts rarely depart from the conclusions arrived at by court-appointed experts on accounting, economic or technical issues, and then only if there are serious reasons for doing so, such as obvious technical mistakes or a violation of the parties’ right to be heard.
Describe the trial process. Who is the decision-maker at trial? How is evidence dealt with? Is it written or oral, and what are the rules on cross-examination?
The judicial process in Belgium is adversarial, and competition damages claims are never tried before a jury. Hence, judges are the decision-makers. Those judges are usually legally trained, although the enterprise courts are composed of one professional magistrate who presides over the court and two laymen, who are usually business people.
Most cases start with a writ of summons from the claimant, and move forward with a written phase where parties exchange trial briefs and exhibits, before the case is orally argued at one or several hearings.
The courts enjoy wide discretionary powers in assessing evidence. In commercial matters, the parties may produce all types of evidence which they believe might convince the courts, with specific exceptions such as professional confidentiality rules. In civil cases, written evidence is required for proving legal acts above EUR 375 or when the opposing party relies upon written evidence.
Generally speaking, almost all evidence produced by the parties in Belgian proceedings is written in nature. Oral evidence is generally quite rare, and courts do not rely often to witness hearings because the procedure to hear witnesses is too burdensome. Where witnesses are heard, only the court is allowed to ask them questions. If either the claimant or a defendant wants to ask questions, it must first direct the question to the court, which may then decide whether or not to ask the question. Cross-examination of witnesses is therefore not permitted under Belgian law.
As a substitute for witness hearings, Belgian law allows parties to submit written witness statements, which are subject to formal requirements aimed at securing the veracity of the statements.
How long does it typically take from commencing proceedings to get to trial? Is there an appeal process? How many levels of appeal are possible?
The time it takes for a matter to proceed to judgment depends on the specific court’s schedule. There are no statutory rules as to the length of proceedings. Judgments are usually rendered between 12 and 18 months after the filing of the claim. The length of the proceedings is longer in case of procedural incidents or investigative measures such as the appointment of an expert.
Judgments of each of the enterprise courts and each of the courts of first instance can be appealed, both on the facts and on the law, before one of the five Belgian courts of appeal, the jurisdiction of which is geographically determined. The appeal proceedings are more lengthy because of the backlog of several courts of appeal, especially the one of Brussels.
A cassation recourse may be brought against decision of the courts of appeal before the Belgian Supreme Court. However, that Court cannot reassess the facts, but can only quash appeal judgments for errors of law. In that case, the Supreme Court usually refers the case back to another appellate court.
Do leniency recipients receive any benefit in the damages litigation context?
Leniency recipients receive some protection regarding evidence production in the sense that courts cannot order the production of leniency declarations, except to verify whether they are indeed such declarations. They cannot be used as evidence.
Furthermore, immunity recipients have a partial defence against claims which are brought against them for joint and several liability with other infringers. This defence enables them to limit their exposure to the losses suffered by their direct or indirect customers or suppliers (see above, question 4).
How does the court approach the assessment of loss in competition damages cases? Are “umbrella effects” recognised? Is any particular economic methodology favoured by the court? How is interest calculated?
The assessment of losses is calculated by courts as the difference between the current situation of the victim and their hypothetical situation but for the anti-competitive act. Umbrella effects are recognised in the sense that anyone who has incurred damage – directly or indirectly – by an infringement of competition law has a right to full compensation. Proof of the infringement, the damage and the causal link between those two is, however, still required.
Methods of evaluation of the damage suffered include the use of economic models and expert evidence. In line with the practice in other EU Member States, Belgian courts favour the comparator-based analysis to assess the loss in competition damages claims. The court also has the option to ask the Belgian Competition Authority for assistance in assessing the loss amount. If the loss cannot be assessed in any objective way, the court can choose to award damages on an equitable basis.
Unless there is a contract providing otherwise, interests are generally awarded starting from the date on which the loss arose until the date of full payment, at a standard interest rate provided by law.
Can a defendant seek contribution or indemnity from other defendants? On what basis is liability allocated between defendants?
Yes. If the claimant’s loss was caused by infringements of competition law by multiple infringers, an infringer who is held liable for the loss can seek contribution from the other infringers. Each defendant must contribute in proportion to the gravity of the contribution of its own fault to the causation of the loss (see above, question 4, for further details).
In what circumstances, if any, can a competition damages claim be disposed of (in whole or in part) without a full trial?
Competition damages claims can be disposed of without a full trial only through a settlement or a waiver of the proceedings by the claimant. There is no mechanism that would allow for a summary dismissal of the case.
What, if any, mechanism is available for the collective settlement of competition damages claims? Can such settlements include parties outside of the jurisdiction?
Under Belgian law, competition damages claims by classes of consumers and SMEs can be lodged through class actions. Such actions for collective redress are preceded by a mandatory negotiation phase which may lead to a collective settlement agreement. Such collective settlement can include parties outside of Belgium, though only on an opt-in basis. When an action for collective redress is initiated and found admissible under Belgian law, the court will set a timeframe during which the group representative and the defendant negotiate an agreement. If these negotiations lead to an agreement, that agreement will only become binding if approved by the court, which will then end the proceedings.
Furthermore, where one of the parties who could potentially act as a group representative in an action for collective redress reaches a settlement with an infringer, the parties may apply to the court to have that settlement approved and declared binding on all potential claimants without the need to first bring collective redress proceedings. However, potential claimants from outside Belgium can again only be bound if they opt in to that settlement agreement.
What procedures, if any, are available to protect confidential or proprietary information disclosed during the court process? What are the rules for disclosure of documents (including documents from the competition authority file or from other third parties)? Are there any exceptions (e.g. on grounds of privilege or confidentiality, or in respect of leniency or settlement materials)?
At the reasoned request of any party to the proceedings, the court may order another party or a third party to produce specific relevant evidence or categories of relevant evidence in its possession. The court must, however, limit the production of evidence to that which is proportionate, taking into account the legitimate interests of all parties and third parties concerned. Before ordering the production of evidence, the (third) party who may be ordered to do so must be invited by the court to submit its written comments regarding the measure.
When the court orders the production of evidence containing confidential information, it takes effective measures to protect that confidential information. These measures include, inter alia, the possibility to conceal sensitive passages by requesting the submission of non-confidential versions of exhibits, requesting summaries of information carried out by experts, holding closed hearings, or limiting the group of persons who may become acquainted with the evidence.
The court can also order the Belgian Competition Authority to produce evidence, but only after inviting it to submit its written comments regarding the proportionality of the measure and only where no other person or entity can reasonably provide the evidence. Certain types of evidence can only be requested from the Belgian Competition Authority after it has ended its own proceedings (e.g. the information that was prepared for the proceedings of the authority and the settlement submissions that have been withdrawn).
The court cannot request a party or anyone else to produce leniency declarations or settlement proposals, except to verify whether they are indeed such types of documents. These documents cannot be used as evidence.
Fines can be administered for the refusal to produce evidence ordered by the court, for the destruction of evidence, for the failure to comply with obligations to protect confidential information or for infringement of the legal restrictions on the use of evidence.
Parties also have the possibility to request courts to treat their trade secrets as confidential. If the court agrees that specific information meets the standards of a trade secret (i.e. it is secret, it has a commercial value and reasonable measures were taken in the past to protect its confidentiality), all the persons involved in the proceedings are prohibited from using or disclosing the trade secret during or after the end of the proceedings under fines. A party can also request the court to restrict access to any document containing trade secrets to a limited number of persons, restrict access to hearings to a limited number of persons, and/or render a non-confidential version of any judgment.
Can litigation costs (e.g. legal, expert and court fees) be recovered from the other party? If so, how are costs calculated, and are there any circumstances in which costs recovery can be limited?
In Belgium, the losing party is generally ordered to pay the costs of litigation. However, the winning party is not awarded its actual costs, but rather a fixed indemnity set by the law. There is limited leeway for the court to vary that indemnity, between a statutory maximum and a minimum. The highest possible amount is currently EUR 36,000.
Are third parties permitted to fund competition litigation? If so, are there any restrictions on this, and can third party funders be made liable for the other party’s costs? Are lawyers permitted to act on a contingency or conditional fee basis?
In Belgium, there are no specific rules with regard to litigation funding, and hence no prohibition.
Third party funding has been offered in Belgium since a few years, and has been used specifically in proceedings dealing with significant amounts and/or with cross-border elements. We are however not aware of any specific competition litigation cases which were funded by a litigation funder, but this is likely only due to the absence of any requirement to inform the court and the other parties about the funding of the claim.
Under Belgian bar rules lawyers are, as a matter of principle, prohibited from taking instructions from a third party-funder. Belgian bar rules also forbid a lawyer being paid solely on the basis of the outcome of a case (‘no cure, no pay’). Success fees, however, can be added to a lawyer’s main fees, but only to a limited extent.
What, in your opinion, are the main obstacles to litigating competition damages claims?
Generally speaking, there are no major obstacles to litigating competition damages claims in Belgium. This does not, however, mean that Belgium is a victim-friendly jurisdiction. Specifically, the burden of proof rests on claimants, which cannot rely on a general system of discovery which would allow them to easily obtain relevant documents from the alleged infringer.
The absence of any specific hurdles is evidenced by an increasing growth in the number of competition claims in the past two decades. Most of that growth was in the form of cease-and-desist actions and actions for the nullity of contractual clauses, but there has also been an increase in competition damages claims. While these claims have led to both positive and negative results, a negative outcome is often not caused by any important obstacles inherent to the Belgian legal system, but rather by a failure on the side of the claimant to make the efforts required to prove the infringement or the actual damage resulting from this infringement.
What, in your opinion, are likely to be the most significant developments affecting competition litigation in the next five years?
A few important developments can be expected in Belgium. First of all, the first actions for collective redress for competition damages are very likely to be launched in the next few years. Indeed, when the regime was first introduced in 2014, it only applied to claims which arose as of the entry into force of that act. Hence, only competition infringements which have been discovered since then will be grounds for actions for collective redress.
Second, we are already seeing a trend towards competition damages claims becoming part of the general strategic toolbox of large companies, which use those claims as leverage against each other. This trend is likely to continue, possibly due to the fact that this type of litigation is often quite complex and therefore requires considerable funds and extensive assistance of specialised lawyers and economists.
Finally, as of June 2020, a new type of competition infringement will be introduced into Belgian law, prohibiting the abuse of economic dependence. The new law intends to tackle abuses in unbalanced relationships between enterprises. As a result of this law, companies imposing conduct or terms that could not be obtained under normal market circumstances on economically dependent companies will risk both being fined by the Belgian Competition Authority and being sued for damages by anyone harmed by their behaviour.