The Belgian action for collective redress (or class action) was introduced by the Act of 28 March of 2014 regarding collective redress. The first initiatives of the Belgian government for the introduction of this class action regime date back from 2009.

Between 2009 and the adoption of the Act of 28 March of 2014, several other proposals for the introduction of some form of collective redress – which differed in scope and mechanism – were launched by the Belgian Parliament. For a more detailed overview, see E De Baere’s De Belgische class action: Een grondige commentaar op de Wet van 28 maart 2014 tot invoeging van de rechtsvordering tot collectief herstel (p 4–6).

Initially, the action for collective redress was limited to damage suffered by consumers only. Following a legislative change in 2018, a collective redress action can now also be initiated for damage suffered by SMEs.

Since the action for collective redress’ inception in 2014, only ten class actions have been initiated in Belgium – nine of which were brought by Test Aankoop /Test Achats, the main Belgian consumer organisation. Only two of those class actions led to a decision on the merits.

The Belgian action for collective redress is not a mere reproduction of the class action regime of another country. The Belgian legislator nevertheless drew inspiration from foreign collective redress mechanisms.

By way of example, the option for the court to homologate a settlement concluded between the group representative and the defendant – making the settlement binding for the group members – was partly inspired by the Dutch Act on the Collective Settlement of Mass Damages (Wet Collectieve Afwikkeling Massaschade, or WCAM), which was introduced in 2005. Despite being a source of inspiration, the Belgian Act of 28 March 2014 differed from the Dutch WCAM on the following levels.

• The WCAM only provided for collective settlements as a means of collective redress and did not allow for filing a class action suit claiming damages – in contrast with the Belgian regime. Class action suits were introduced in the Netherlands through the Act on the Settlement of Mass Damages through Collective Action (Wet Afwikkeling Massaschade door Collectieve Actie, or WAMCA) in 2020.
• The Belgian action for collective redress was limited in terms of personal and material scope (see 3.1 Scope of Areas of Law to Which the Legislation Applies), whereas the WCAM applied without such limitations.

Other aspects of the Act of 28 March 2014 were to a certain extent inspired by the class action regime in Quebec, Canada. Again, the scope of the Belgian collective redress action is much more restricted and other significant procedural differences (eg, standing as group representative; opt-in versus op-out) exist between both regimes. Please refer to 4. Procedure for Bringing Collective Redress/Class Actions for a detailed overview of the procedural regime applicable to the Belgian collective redress action.

Belgium has not yet implemented the EU Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. However, on 27 October 2023, the Council of Ministers announced that a preliminary draft for the implementation of said directive had been approved within the Council. The preliminary draft was submitted to the Belgian Council of State for advice.

The preliminary draft is not published and the Council’s announcement contains limited information as to its content. However, the Council disclosed that the proposed amendments include an extension of the scope of the collective redress action and a modification of the requirements to be recognised as a representative entity. In addition, representative entities would be accepted on an ad hoc basis.

It remains to be seen whether the implementation of the EU Directive will lead to an uptick in class actions in Belgium.

Action for Collective Redress

The Belgian collective redress action (or class action) is governed by Articles XVII.35 to XVII.70 of the Belgian Code of Economic Law (BCEL). The legal framework for this collective redress action entered into force on 1 September 2014 and applies to harmful events that occurred on or after this date.

For an outline of the procedure for bringing a collective redress action, please refer to 4. Procedure for Bringing Collective Redress/Class Actions.

Group Direct Actions

Outside the framework of a collective redress action, groups of claimants can bundle individual claims and file proceedings jointly in order to conduct the proceedings in a more cost-effective manner. This requires a sufficient nexus between the claimants’ individual claims. In the absence of a sufficient nexus, the court may decide to unbundle the claims and have them proceed separately.

Legal proceedings regarding bundled claims are not governed by specific statutory provisions. They are conducted in accordance with the default rules of the Belgian Judicial Code, which can lead to procedural complexities.

Despite the bundling of the claims, all claims must be individually assessed on their merits and every claimant carries the burden of proof of its own claim.

The scope of the Belgian collective redress action is limited on several levels.

First, collective redress actions are available only for harm caused by an enterprise to consumers or SMEs.

Second, the claim brought in a collective redress action must be based either on a breach of contractual obligations of the defendant or on violations of Belgian and EU rules limitatively defined in Article XVII.37 of the BCEL. Among other things, these rules relate to:

• unfair market practices and consumer protection;
• unfair competition (antitrust);
• payment and credit services;
• product safety;
• IP; and
• data privacy;

Lastly, the harmful event must have occurred on or after the entry into force of the statutory regime – ie, 1 September 2014.

A “collective redress action” is defined as “a legal action seeking to repair a collective damage” (Article I.21, 3° of the BCEL).

“Collective damage” is defined as “the totality of all individual damages having a common cause and suffered by the members of a group” (Article I.21, 1° of the BCEL).

Pursuant to Article XVII.35 of the BCEL and Article 633-ter of the Judicial Code, the Enterprise Court of Brussels and (on appeal) the Court of Appeal of Brussels have exclusive jurisdiction for class actions procedures.

Pursuant to Article XVII.42 of the BCEL, a class action procedure is initiated by the filing of an application before the Enterprise Court of Brussels. This application can, however, only be filed by a the group representative, which must be one of the entities referred to in Article XVII.39 of the BCEL.

To be admissible, the application must contain the following elements:

• a description of the collective damage ;
• a proposal of the option system to be applied (opt-in or opt-out) and the reason thereof ;
• a description of the group for which the group representative intends to act with an estimation of the number of injured parties and, when appropriate, the sub-categories within the group; and
• proof that the admissibility criteria set forth in Article XVII.36 of the BCEL are met ‒ namely, that:

1. the invoked cause of the harm constitutes a potential breach of a contractual obligation of the defendant, one of the EU regulations, or one of the laws referred to in Article XVII.37 (or their implementing decrees);
2. the action is brought by a group representative who meets the requirements referred to in Article XVII.39 and who is deemed suitable by the judge; and
3. recourse to a class action suit appears to be more efficient than an action in accordance with the common procedural laws.

The class action procedure can be broken down into six stages.

Admissibility Phase

The question of admissibility is treated specifically by the BCEL in its Article XVII.43. Pursuant to this provision, the court must render a decision on the admissibility within two months of the filing. During this first stage, the court can set a procedural timeline to allow the parties to exchange briefs and plead on this specific topic.

In this regard, it must be stressed that if the above-mentioned application does not contain all the elements set forth in Article XVII.42 of the BCEL, the court’s registry will invite the group representative to complete their application within eight days. Should they fail to do so, the application is deemed not filed.

As for the limitation period, the BCEL does not derogate from common law, which sets the following relevant limitation periods:

• ten years for contractual claims, starting from the day after the due date of the relevant contractual obligation; and
• five years for claims in tort, starting from the day after the date on which the claimant was aware of both the damage (or aggravation thereof) and the identity of the person liable for the damage – however, the claim will in any case be time-barred 20 years (and one day) after the event causing the damage.

However, Article XVII.63 of the BCEL provides for specific rules regarding the tolling of the limitation period.

Option Phase

In its ruling on the admissibility, the court fixes the deadline for the exercise by the class members of their option. The duration of this phase is a minimum of 30 days and a maximum of three months (see 4.6 Case Management Powers of Courts).

Mandatory Negotiation Phase

The duration of this phase is decided by the court but it must last between three to six months (with the option for the court to extend, once, the phase by a maximum of six months), starting at the end of the option phase (see 4.6 Case Management Powers of Courts).

The court can appoint a mediator during the mandatory negotiation phase, either at the parties’ request or ex officio (but not without the parties’ consent). Mediation is confidential under Belgian law.

Proceeding on the Merits

If the parties do not manage to agree on a collective settlement agreement, or if the proposed settlement is dismissed by the court, the court’s registry will – within a month – summon the parties to a case management hearing to determine the procedural timetable for the exchange of briefs and the oral pleadings.

Judgment and Appeal

The final judgment on the merits is binding for the parties, subject to appeal. However, class members who can demonstrate that they could not reasonably be aware of the admissibility decision (which sets the deadline for the exercise of their option) are not bound by the decision.

Parties (ie, group representatives and the defendant) can appeal the decision on the admissibility and/or on the merits but, in principle, not the decision approving their collective settlement agreement.

Distribution of Compensation Phase

For successful claims, a court-appointed administrator enforces the settlement or judgment and distributes the damages to the group members.

Standing in class action procedures is governed by Articles XVII.36, XVII.38, XVII.39 and XVII.40 of the BCEL. Pursuant to these provisions, class actions can only be brought before the court on behalf either of a group of consumers or SMEs that have been personally harmed by a violation by an enterprise of its contractual obligations or of the specific Belgian and/or EU laws set forth in Article XVII.37 of the BCEL.

Each group must be represented by one of the group representatives referred to in Article XVII.39 of the BCEL. In the case where the violation has caused harm to both consumers and SME’s, each group must be represented separately.

According to Article XVII.30 of the BCEL, the following can act as group representatives for consumers:

• a consumer protection organisation with legal personality, represented in the Council for Consumption or recognised by the Minister of Economy;
• an association with legal personality, approved by the Minister of Economy, whose corporate purpose is directly related to the collective loss suffered by the group and which does not pursue an economic goal on a long-term basis (the association must exist for at least three years and must demonstrate that its actual activity fits its corporate purpose and that this activity is related to the collective interest that it seeks to protect);
• the “Mediation Service for the Consumer”, but with the sole view to representing the group in the negotiation phase;
• a representative body recognised by a member state of the EU or the European Economic Area to act as a representative and meeting the conditions of point 4 of Recommendation 2013/396/EU on common principles for injunctive and compensatory collective redress mechanisms in the member states concerning violations of rights granted under EU law.

SMEs can only be represented by:

• an inter-professional organisation for the defence of the interests of SMEs with legal personality, provided that it has a seat on the High Council for the Self-Employed and SMEs or is approved by the Minister of Economy;
• an association with legal personality, approved by the Minister of Economy, whose corporate purpose is directly related to the collective loss suffered by the group and which does not pursue an economic goal on a long-term basis (the association must exist for at least three years and must demonstrate that its actual activity fits its corporate purpose and that this activity is related to the collective interest that it seeks to protect); and
• a representative entity approved by a member state of the EU or of the European Economic Area to act as a representative and which meets the conditions of point 4 of Commission Recommendation 2013/396/EU of 11 June 2013 on common principles applicable to mechanisms for collective redress for injunctions and damages in the member states for violations of rights conferred by EU law.

Natural persons of companies can thus not act as group representatives.

Furthermore, the group representatives have to be deemed suitable by the court, mainly to ensure that group members are effectively represented and to avoid frivolous class actions.

Finally, it must be stressed that ‒ pursuant to Article XVII.40 of the BCEL ‒ the group representative must meet the above-mentioned criteria during the entire procedure. Should they fail to do so, a new group representative is appointed by the court. If a new representative can not be found, the procedure will be terminated by the court.

For consumers or SMEs that have their habitual residence or main establishment in Belgium respectively, it is up to the court to decide – in its admissibility ruling – whether the opt-in or opt-out system is selected on the basis of elements such as the arguments presented by the parties, the interest of the group members, the size of the group, and the type of damage suffered.

However, pursuant to Article XVII.38 of the BCEL, the opt-in system is mandatory in the following cases:

• for consumers and SMEs that have their habitual residence or main establishment outside of Belgium respectively; or
• if the class action aims to repair a physical or moral damage.

Unless decided otherwise by the court (which can discretionarily order additional advertising measures), group members are not individually notified that a class action has been initiated on their behalf. However, the decision on admissibility is published both on the website of the Federal Public Service of Economy and in the Official Gazette.

Group members have no control over the procedure once they have exercised their option, as they are not a party to the procedure. They are, however, bound by the judgment rendered on the merits.

Once the deadline set forth by the court in its admissibility decision has passed, it is not possible for a consumer or an SME to join a procedure that is conducted on a opt-in basis.

The court has broad powers with regard to case management.

During the admissibility phase and after examining if the group representative meets all the legal criteria set forth in Articles XVII.36, XVII.38, XVII.39 and XVII.40 of the BCEL, the court assesses discretionarily if the group representative is deemed “suitable” in order to bring the class action procedure. Furthermore, the court must examine whether the cause invoked may constitute a potential infringement of the legal provisions or contractual obligations invoked, meaning that the claim can already be rejected by the court at this early stage.

Finally, during the admissibility phase, the court can set a procedural timeline to allow the parties to exchange briefs and plead on admissibility. This procedural timeline can by agreed upon by the parties or, in the absence of an agreement on the matter, imposed by the court.

During the option phase, it is up to the court to decide – except in two cases, as explained in 4.4 Class Members, Size and Mechanism (Opt In/Out) – whether the opt-in or opt-out system is selected on the basis of elements such as the arguments presented by the parties, the interest of the group members, the size of the group and the type of damage suffered. The court also decides the duration of this phase, which is a minimum of 30 days and a maximum of three months.

During the mandatory negotiation phase, the court decides the duration of this phase (three to six months) and can extend it once (for a maximum of six months). The court assesses whether the settlement reached by the parties is reasonable or not. For further details, please refer to 4.12 Settlement and ADR Mechanisms.

During the proceeding on the merits, if the parties do not reach an agreement on the procedural timeline for the exchange of briefs and the date and duration of the hearing, it is up to the court to impose such timeline.

For details of the timetable for the proceeding, please refer to 4.2 Overview of Procedure and 4.6 Case Management Powers of Courts.

With regard to the length of the procedure, the duration of the preliminary phases (ie, before reaching the procedure on the merits) varies from a minimum of six months (two months for the admissibility phase, 30 days for the exercise of the option, three months for the mandatory negotiation phase) to a maximum of 17 months (two months for the admissibility phase, three months for the exercise of the option, 12 months for the mandatory negotiation phase).

Parties can influence the length of the proceedings on the merits, as they can agree on (and impose on the court) the procedural timeline and determine the deadline for the exchange of briefs and the number of briefs exchanged. However, for practical reasons, the authors believe that such proceedings on the merits would take at least a year and up to two years.

It is hard to determine the length of the appeal procedure, as it would depend on the congestion of the court docket. However, the authors estimate the appeal procedure could last from two to five years.

There are no specific procedural mechanisms in place that would allow the parties to deviate from the timetabling principles set forth in 4.2 Overview of Procedure.

Costs

As is the case for regular court proceedings in Belgium, the losing party pays the costs of the proceedings (court fee, expert fees, translation costs). Attorney’s fees are limited to a lump sum procedural indemnity determined pursuant to criteria defined by law.

Funding

Third-party funding is not regulated in Belgium. In the absence of any statutory rules or prohibition, third-party funding is generally considered to be permitted (including for collective redress actions). However, there are several practical barriers to funding of actions for collective redress by litigation funders.

By way of example, the compensation awarded by the court may be in kind (instead of money damages). Moreover, when damages are awarded by the court, the court appoints an administrator to distribute the damages to the group members directly – not to the group representative. As a result, the third-party funder cannot get a return on investment directly of the proceeds of the action. The only way for a funder to share in the proceeds is by entering into an agreement with the group members prior to distribution of the damages. However, this is largely impractical in opt-in proceedings and (as good as) impossible in opt-out proceedings.

In addition, there is no public funding available for collective redress actions.

Disclosure

There is no discovery under Belgian law. Pursuant to Article 870 of the Judicial Code, each party must provide the evidence of the facts that constitute the basis of its claim. However, Belgian law imposes a duty on each party to collaborate in the production of the other party’s evidence. To that extent, a judge can – according to Article 877 of the Judicial Code – order the production of specific documents or information when certain criteria are met.

When a claim for damages is based on a violation of competition law, Articles XVII.94 to XVII.96 of the BCEL provide for a specific regime of production of evidence. The statutory requirements for the application of this particular regime are less strict than is the case for Article 877 Judicial Code.

Privilege

With regard the question of privilege, there are no specific rules for class actions. Common privilege regulations do apply, however. To that extent, it must be noted that every communication (and the attached documents) between a lawyer admitted to the Bar and their client – as well as all communication between lawyers (unless this communication meets severe criteria) ‒ are privileged and cannot be produced in court.

A collective redress action can only aim at obtaining compensation, either in kind or by equivalent (ie, money damages).

The core principle of civil liability law in Belgium is full restitution for the injured party, placing them in a position as if the damage had not occurred. The injured party is therefore entitled to full compensation.

The quantum of the actual damage or loss suffered by the claimants (or, in the case of class action, the group members) is determined by the court. The court can appoint an expert to issue a report on the quantum of the damages.

Belgian law does not allow for punitive damages or exemplary damages.

Settlement

So far, settlements have played an important role in the resolution of Belgian class action proceedings. The legal framework allows parties to submit a settlement to the court for approval during several stages of the proceedings.

• First, the parties can reach a settlement agreement before formally initiating a class action suit. In that case, pursuant to Section 2 of Article XVII.42, the parties can file a petition with the court to approve the settlement agreement. The parties will have to demonstrate that the conditions for the admissibility of the class action are met and annex the settlement agreement to their petition. The court will then conduct a review of the latter based both on formal criteria and on a manifest unreasonableness check (see below).
• Second, as stated in 4.2 Overview of Procedure, the BCEL provides for a mandatory negotiation phase of three to 12 months. By the end of that period, the parties must reach a settlement and submit it to the court, which must verify if certain criteria (modalities and content) are met. If the criteria are not met, the court invites the parties to modify the settlement agreement. If the criteria are met, the court has to decide whether it approves the settlement agreement. The court can refuse (and, in which case, may invite the parties to modify the settlement agreement) if:
1. the settlement agreement is manifestly unreasonable;
2. the period in which group members must manifest themselves to obtain individual compensation is manifestly unreasonable (in proceedings conducted under the opt-out system);
3. the publication measures are manifestly unreasonable; and
4. the compensation awarded to the group representative exceeds the costs effectively incurred by the group representative.

If the parties have not reached a settlement or have not modified the settlement agreement when invited to by the court or the settlement agreement has not been approved, the procedure on the merits starts.

• Third, the parties can reach a settlement at any time during the procedure but before a decision on the merits in rendered. If they do so, they can file a petition to the court to approve the settlement. Again, the court will review the settlement in light of the criteria above.

The approval of the settlement by the court makes it binding on the parties.

Mediation

As noted under 4.1 Mechanisms for Bringing Collective Redress/Class Actions, the court can appoint a mediator during the mandatory negotiation phase.

Other ADR

Article XVII.68 of the BCEL provides that a group member can use ADR mechanisms in order to reach an individual settlement agreement. In that case, they must inform the court’s registry and will cease to be a member of the class.

Otherwise, no specific provisions govern ADR mechanisms for class actions.

Although class members are not formally considered as a party to the class action procedure, they are nevertheless bound by the judgment on the merits, except for members who can demonstrate that they could not reasonably have been informed of the judgment on the admissibility.

If the court approves the settlement agreement or if it renders a favourable judgment on the merits, the court appoints an administrator charged with ensuring that the settlement or the judgment is properly performed. The administrator performs their tasks under the supervision of the court. The administrator draws up a list of group members who are eligible for distribution. This list can be challenged – in which case, the court will decide on a final list. The defendant will pay the compensation directly to the administrator, who will then distribute the individual compensations to every eligible group member.

No particular policy developments are currently in progress in relation to collective redress.

The Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers is presently not yet implemented in Belgian law. However, a preliminary draft proposal has been approved by the Council of Ministers (see 1.3 Implementation of the EU Collective Redress Regime).

The impact of Brexit on the matters outlined in the foregoing sections is not applicable in this jurisdiction.

At the time of writing, ESG-related issues have not had any significant impact in respect of the matters discussed in this chapter.