Belgium transposes EU Damages Directive
On 12 June 2017, the Act implementing the EU Damages Directive into Belgian law was published in the Belgian State Gazette.
The most important changes for the Belgian practice are:
Presumption of harm
The Directive establishes a rebuttable presumption that cartels cause harm. Up until now, such presumption did not exist under Belgian law. It has proven to be a hurdle for claimants to establish the existence of damage, witness thereof being the judgements of the Brussels Commercial Court in the cartel damages claims of the Belgian State and the European Union against the members of the elevator cartel, in which the claimants were sent away empty handed. The implementation of the Directive in Belgium shifts the burden of proof of the absence of harm to the cartelists. They will need to demonstrate that their cartel did not cause any harm to the claimants.
Further, it should be noted that the definition of "cartel" as implemented by the Belgian legislature goes beyond what the Directive requires. The Economic Code defines it as “an agreement or concerted practice between two or more competitors - and, if need be, one or more other non-competitors […]”. By introducing "non-competitors" in this definition, the Economic Code is aligned with the Belgian Leniency Notice, which uses the same broad cartel definition.
Effect of decisions of national competition authorities
The Directive requires that a national competition authority’s final infringement decision constitutes full proof that the infringement occurred before the civil courts in the same Member State, and it will constitute at least prima facie evidence of the infringement before the courts of other Member States. The binding force of the Belgian Competition Authority’s (BCA) decisions before the Belgian courts has long been the subject of discussion, although, in practice, the BCA’s decisions were valued as evidence. With the implementation of the Directive, the binding effect of the BCA’s decisions before the Belgian courts has been given a legal basis.
Protection of confidential information
As a result of the Directive, the Member States must ensure that their national courts have effective measures at their disposal to protect confidential business information, when ordering the disclosure of such information. The Belgian Judicial Code does not contain a specific procedure allowing protection of confidential information and business secrets in a civil procedure. However, Belgian case law and legal doctrine have never a priori excluded the protection of confidential information and business secrets but considered that a weighing of interests had to be made. The Belgian Code of Economic Law now explicitly empowers the courts to order the disclosure of confidential information, provided that effective measures are taken in order to protect the confidential nature of the information in question. In this regard, a non-exhaustive list of possible measures (eg redacting the confidential information, limiting the group of individuals that have access to the information, or requesting the submission of non-confidential versions of documentation) provides guidance to the Belgian courts.
Finally, it is interesting to note that the Belgian Implementation Act extends the material scope for bringing a collective action in Belgium to violations of Article 101 and/or 102 TFEU. Prior to that, the law only referred to violations of the corresponding provisions of Belgian competition law.
