Collective Redress & Class Actions 2024 Comparisons

Litigation in Belgium has historically been based on disputes between two parties. The Belgian Judicial Code, which contains general rules on civil procedure, was enacted in 1967, a time when the access-to-justice movement had yet to emerge. Indicative of this context is a famous judgment in 1982 (Eikendael), in which the Belgian Supreme Court (Court of Cassation) found an action brought by an association acting in the collective interest inadmissible on the grounds of a lack of personal interest.

Over time, Belgian law has increasingly accommodated collective forms of litigation. Frequently prompted by pressures from EU law, a series of new collective actions for associations have been introduced. Nonetheless, these collective actions have generally been confined to the pursuit of injunctive relief within specific domains, such as consumer law, environmental law and anti-discrimination law.

Until 2014, parties seeking compensation as a group had to resort to various procedural techniques, of which the following three were the most prevalent.

• Joined actions: These involve multiple plaintiffs with closely connected claims, each acting in their own name and on their own behalf, who can bring their claims in a joint introductory document and have them decided in a single set of proceedings.
• Mandate ad agendum: Through this process, multiple plaintiffs instruct a (natural or legal) person, via a power of attorney, to initiate proceedings in their name and on their behalf. This technique has been frequently utilised in the field of investor litigation.
• Joining a criminal case as a civil party: In matters where criminal charges have been brought, parties could join the criminal case as so-called “civil parties”, claiming damages and relying on evidence assembled by public prosecutors in the criminal proceedings.

These solutions, however, were not deemed satisfactory, leading to various legislative initiatives since 2006 aimed at introducing forms of collective redress in Belgian law. Simultaneously, there were multiple initiatives from the EU underscoring the importance of such mechanisms, often particularly for consumers (eg, the 2005 Green Paper on antitrust damages actions, the 2008 White Paper with policy suggestions on antitrust-specific collective redress, the 2008 Green Paper on Consumer Collective Redress, the 2012 European Parliament Resolution Towards a Coherent European Approach to Collective Redress and the 2013 Commission Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States (hereinafter, the “2013 Commission Recommendation”).

In the realm of collective redress, 1 September 2014 marked a significant milestone with the entry into force of a law introducing a representative action for collective redress for the benefit of consumers (hereinafter, the “action for collective redress”). From 2018, this mechanism was also extended to the benefit of small and medium-sized enterprises (SMEs). In the same year, in the implementation of Article 80 of the General Data Protection Regulation (GDPR), a similar mechanism was implemented in the field of data protection, enabling associations to initiate collective redress actions if mandated by data subjects.

Also in 2018, the Belgian Judicial Code was amended to permit legal persons aiming to protect human rights or fundamental freedoms, recognised by the Belgian Constitution or by international instruments binding on Belgium, to bring an admissible claim to pursue a purely collective interest. This has significantly broadened the locus standi of human rights organisations, albeit subject to several conditions.

The last significant step was taken in 2024 with the enactment of the Act of 21 April 2024, which transposes Directive (EU) 2020/1828 of the European Parliament and of the Council of the European Union of 25 November 2020 on representative actions for the protection of the collective interests of consumers (hereinafter, the “Representative Actions Directive”) into Belgian law and introduces important changes to the existing legal framework.

The action for collective redress was adopted one year after the 2013 Commission Recommendation and is clearly inspired by it. For instance, in Belgium, legal standing has been restricted since its introduction to designated representative entities that fulfil certain criteria. This contrasts with the US class action, which permits named consumers to bring an action on behalf of a proposed class that has suffered a common injury. Another example demonstrating the influence of the 2013 Commission Recommendation is the encouragement of collective settlements. Parties can submit a pre-trial settlement agreement to the court for homologation, which also resembles the Act on Collective Damages in Class Actions (WAMCA) procedure that has existed in the Netherlands since 2005. Additionally, during the court proceedings, there is a negotiations phase during which the representative entity and the defendant should attempt to reach a settlement. Since the Act of 21 April 2024, the action for collective redress has been fully aligned with the Representative Actions Directive.

The Belgian legislator has implemented all mandatory provisions (“Member States shall…”) of the Representative Actions Directive. Regarding optional provisions (“Member States may…”), the following choices by the Belgian legislator are worth noting.

• The same criteria that an organisation must fulfil to be designated as a qualified entity for the purpose of bringing cross-border actions are applied to entities wishing to bring domestic actions for the protection of the collective interest of consumers.
• A qualified entity can be designated on an ad hoc basis for the purpose of bringing a specific domestic action.
• Although the Representative Actions Directive permits the prohibition of third party funding, the Belgian legislator has not prohibited such funding for collective redress actions, but has provided certain measures to regulate its use.
• The Representative Actions Directive does not prescribe how member states should determine group membership. The Belgian legislator opted for a generalised opt-in system. Previously, courts had to choose between opt-in and opt-out, leading to lengthy discussions.

Finally, it is noteworthy that the Belgian legislator has extended several rules prescribed in the Representative Actions Directive for consumers to SMEs. These include the criteria for organisations to be designated as qualified entities for SMEs, the possibility for ad hoc designations of qualified entities and allowing qualified entities for SMEs designated in another member state to bring cross-border actions for collective redress in Belgium.

The key procedure for Belgian collective redress is the action for collective redress. The rules on that action are included in Title II of Book XVII of the Code of Economic Law, specifically in Articles XVII.34 to XVII.70. This mechanism was introduced by the Act of 28 March 2014, with significant amendments made by the Act of 30 March 2018 and the Act 21 April 2024.

In addition, a number of other collective redress procedures are available in Belgium.

• The collective action for infringements on personal data is included in Article 220 of the Act of 30 July 2018 concerning the protection of natural persons with regard to the processing of personal data. That Act allows certain non-profit organisations to represent individuals who are the victim of breaches of the statutory or regulatory rules on data protection. That organisation has to satisfy certain conditions and must be specifically authorised by the individuals involved.
• The collective redress actions aiming to protect human rights or fundamental freedoms recognised by the Belgian Constitution or international instruments binding on Belgium are foreseen in Article 17, second paragraph of the Judicial Code.
• The main actions for injunctive relief can be found in the following laws:
1. Article XVII.1 of the Code of Economic Law – injunctions for the protection of the collective interest of consumers. This action for injunctive relief allows certain not-for-profit and public entities, as well as injured parties, to bring an action before the President of the Enterprise Court to obtain an order to cease acts that breach the Code of Economic Law and certain related rules (this includes, for instance, the rules on unfair commercial practices, competition law, and intellectual property and trade secrets).
2. Article 20 of the Act of 10 May 2007 combating certain forms of discrimination, Article 25 of the Act of 10 May 2007 combating discrimination between women and men, and Article 18 of the Act of 30 July 1981 penalising certain acts motivated by racism and xenophobia – injunctions to halt discriminatory practices. Those actions allow certain special interests groups to obtain injunctions prohibiting certain discriminatory practices.
3. Article 1 of the Act of 12 January 1993 concerning the right of action in environmental protection – injunctions to prevent environmental damage. That action allows certain special interests groups to obtain injunctions prohibiting certain practices harming the environment.

This contribution deals only with the Belgian action for collective redress and does not go into detail on the other types of collective procedures available in Belgium.

The action for collective redress is only permitted when the claim is based on a breach by an undertaking of a contract or of one of the Acts or European Regulations specifically listed in the law. This list has been regularly updated since 2014 and, since the implementation of the Representative Actions Directive, explicitly refers to the provisions of European law listed in Annex I of that Directive (as updated from time to time) as well as its Belgian implementation rules. The action for collective redress therefore applies to a broad spectrum of disputes, such as for violations of the following.

• General consumer protection rules, including:
1. unfair contract terms;
2. unfair commercial practices;
3. misleading advertising; and
4. product safety and liability.

•       Sector-specific rules in various areas, namely:

1. financial services, such as (i) payment and credit services, (ii) prospectus legislation, including Markets in Financial Instruments Directive (MiFID) rules, and (iii) rules on packaged retail and insurance-based investment products (PRIIPs) and European long-term investment funds;
2. telecommunications, such as roaming;
3. regulated industries like natural gas and electricity;
4. media services;
5. pharmaceuticals and medical devices;
6. travel and tourism; and
7. eco and energy labelling.
• The Digital Markets Act and the Digital Service Act.
• The GDPR.

In some respects, the Belgian action for collective redress has a broader scope of application than the one defined by the Representative Actions Directive, especially when it comes to:

• breaches of contract;
• prohibition of anti-competitive agreements and abuse of dominance;
• intellectual property;
• collection of consumers debts; and
• rules seeking to protect SMEs, such as (i) the Belgian Act on commercial agency agreements; (ii) the Belgian Act on sales concessions; and (iii) the Belgian Act on interest rates in commercial transactions.

The action for collective redress is defined as a legal action initiated by an authorised representative and aimed at remedying collective harm, whereby collective harm should be understood as the aggregate of all individual damages that have a common cause and have been suffered by the members of a group.

The main mechanism for collective redress under Belgian law is the action for collective redress. The action for collective redress was introduced into Belgian law by an Act of 28 March 2014, which entered into force on 1 September 2014. As a result, actions for collective redress can only be brought when the common cause of the collective harm occurred as of 1 September 2014. To transpose the Representative Actions Directive, an Act of 21 April 2024 made significant changes to the action for collective redress. The amended rules apply to the proceedings brought after the Act’s entry into force on 31 May 2024, with the old rules continuing to apply to proceedings brought before that date. This contribution will only deal with the new rules as amended by the Act of 21 April 2024.

The action for collective redress is Belgium’s version of the representative action required by the Representative Actions Directive. It is a representative proceeding, meaning it is brought by a group representative on behalf of a group of consumers or SMEs who themselves are not a party to the proceedings. The group representative (see 4.3 Standing) will claim damages on behalf of the injured group of consumers or SMEs and, if their claim succeeds, will only receive compensation for their costs (on the basis of statutory scales). Any redress obtained will then only be for the benefit of the consumers or SMEs who are part of the group.

Such actions for collective redress can only be brought for claims based on breaches of specific pieces of legislation listed in the Belgian Code of Economic Law, or for breaches of contract (see 3.1 Scope of Areas of Law to Which the Legislation Applies). While this is a feature also present in the European Collective Redress Directive, the Belgian action for collective redress has a broader scope than required by that directive. For instance, it is also possible for breaches of competition law or contractual obligations.

Actions for collective redress can only be brought before the Enterprise Courts of Brussels. Any proceedings brought before those courts must either be brought in Dutch or in French. As such, actions for collective redress in German are not possible in Belgium, even though it is an official language.

In addition to actions for collective redress, Belgian law also recognises a number of other types of collective proceedings. These proceedings are not detailed further in this contribution but are briefly outlined in 2.1 Collective Redress and Class Action Legislation.

In addition, Belgian law allows consumers multiple plaintiffs to join their actions, either by jointly bringing proceedings or by requesting a court to join multiple related proceedings. Joint actions are heard and adjudicated together. The key difference with an action for collective redress is that joint actions must be brought by the injured party itself. In addition, each injured party will need to prove it has standing to act and will need to produce evidence of the individual harm that it alleges to have suffered.

Joined actions are sometimes brought in matters that fall outside the scope of actions for collective redress (eg, because the party taking the initiative does not have standing to bring an action for collective redress or because the matter does not relate to a breach of the legislation on the basis of which actions for collective redress are possible).

Contrary to ordinary proceedings under Belgian law, actions for collective redress are run in several phases. To commence proceedings, the prospective group representative must file an application with the court registry of the (Dutch- or French-language) Enterprise Courts of Brussels. That application must contain certain mandatory mentions and information, including:

• evidence that the action satisfies all admissibility requirements;
• a description of the collective harm for which the action is brought;
• a description of the group that the prospective group representative seeks to represent;
• the redress sought; and
• information on the financing arrangement (if any) for the action.

If the application does not contain all the requisite information, the court registrar will request the applicant to complete it within eight days, absent which it is deemed not to have been filed. Following a complete filing, the court registrar will ensure the application is notified to the named defendants.

Following notice of the application to each of the defendants, the case enters the admissibility phase. During that phase, the court must verify whether all admissibility requirements are fulfilled – ie, whether:

• the cause of action is a potential breach of one of the specific pieces of legislation listed in the Belgian Code of Economic Law;
• the applicant is an entity that can act as a group representative, and its statutory purpose is directly related to the subject matter of the action; and
• an action for collective redress appears more efficient than ordinary proceedings.

At the same time, the court will also delineate the dispute by defining the group, the collective harm and the common cause for that harm.

It was the intention of the Belgian legislator to ensure that the admissibility phase proceeded quickly. As such, there is a statutory two-month period following the filing of the application for collective redress within which the court is required to rule on the admissibility of the action. In addition, the relevant statutory provisions also require that, by default, oral arguments on admissibility are heard immediately at the first hearing or shortly thereafter. However, these short deadlines do not apply if the parties agree otherwise, and in practice, applicants and defendants generally agree to extend the admissibility phase to allow all parties to have sufficient time to file submissions.

If the court declares the action for collective redress admissible, the admissibility decision is published online on the Ministry of Economic Affairs’ website and in the Belgian official journal. Following that publication, the negotiations phase of the proceedings starts. During that phase (the duration of which is set by the court in its admissibility judgment), the parties are expected (but not required) to negotiate a settlement. To that end, the court can (if the parties request it or at least consent) appoint a mediator to assist the negotiations. If one of the parties refuses to negotiate, the other party can request the court to terminate the negotiations phase prematurely.

If the parties reach a settlement, they can present that agreement to the court to have it declared binding on all of the group members (see 4.12 Settlement and ADR Mechanisms).

If no settlement is reached during the negotiations phase, the court refuses to approve a settlement or the parties ignore a request by the court to complete a settlement that does not contain all necessary mentions, the matter proceeds to the merits phase. During that phase, the parties are allowed to file submissions on the merits of the group representative’s claims. At the end of this phase, a hearing is organised during which the parties can present their oral arguments. The court will then issue its judgment on the merits, which will be published online on the Ministry of Economic Affairs’ website and in the Belgian official journal.

If the court declares (at least part of) the group representative’s claims well-founded, potential group members have four months as of the publication of the judgment to opt in to the group. The court cannot impose an opt-out mechanism in a judgment on the merits. By contrast, settlements entered into between the parties can be entered into on an opt-in or an opt-out basis, although an opt-in system must always apply to consumers whose habitual place of residence is not in Belgium, to SMEs whose main establishment is not in Belgium and to any group member when the harm for which redress is sought is physical or moral harm.

Following the expiration of the deadline for potential group members to opt in or out of proceedings, a claims handler appointed by the court in the judgment on the merits or the judgment approving a settlement will compile a list of group members. The claims handler is selected from a list kept by the court of lawyers, public officials and court agents who can act as claims handlers. If there are any persons who have opted in (or have not opted out of) the proceedings but are not included on the list of group members (because the claims handler believes they do not satisfy the criteria), a limited, brief appeal process is available. After the time limits for that appeal process have expired, the court will decide on the final list of group members.

Once the list of the group members has been finalised, the defendant is required to make redress as set out in the approved settlement or judgment on the merits. During this process, the claims handler will provide quarterly reports to the court, which can continue to intervene if issues arise.

Once redress has been made to all group members, the claims handler will file a final report with the court. That report will include an overview of the claims handler’s costs and any amounts left that have not been paid out to consumers. Once the court has decided on this, the proceedings are over.

Belgian rules on action for collective redress restrict standing to act as a group representative to various categories of entities listed specifically in the law.

Only the following categories of entities can bring actions for redress on behalf of a group of consumers.

• A legal entity that has been authorised by the Minister of Economic Affairs to act as a group representative for consumers. To obtain such an authorisation, legal entities must evidence to the Minister that:
1. they are a legal entity under Belgian law with 12 months of actual activities in the field of consumer protection;
2. their statutory purpose includes the protection of consumer interests;
3. they are a non-profit;
4. they are not involved in insolvency proceedings and have not been declared bankrupt;
5. they are independent and not influenced by parties that are not consumers; and
6. they publish clear and understandable information on their compliance with the aforementioned criteria and on their sources of financing, the structuring, management and membership of their organisation, their statutory purpose and their activities. The authorisation given by the Minister remains valid indefinitely, but the Minister will regularly assess whether the legal entity still complies with all of the authorisation’s conditions.
• Any legal entity or public body that has been authorised by another member state to act as a group representative. Evidence of that authorisation can only be provided by way of the list published by the European Commission containing the identity of all potential group representatives.
• Where a legal entity does not fall within either of the two previous categories, they can act as a group representative on an ad hoc basis. In that case, the court before which they bring their claim will need to assess whether they satisfy the criteria to be authorised to act as a group representative.
• Finally, the Belgian Consumer Ombudsman – a public body that mediates consumers disputes – can also act as a group representative. However, it is only permitted to act in the admissibility and negotiations phases. If it is unable to reach a settlement with the defendant(s), another group representative must take over after the negotiations phase.

Only the following categories of entities can bring actions for redress on behalf of a group of SMEs.

• A legal entity that has been authorised by the Minister of Economic Affairs to act as a group representative for SMEs. To obtain such an authorisation, legal entities must evidence to the Minister that:
1. they are a legal entity under Belgian law with 12 months of actual activities protecting SME interests;
2. their statutory purpose includes the protection of SME interests;
3. they are a non-profit;
4. they are not involved in insolvency proceedings and have not been declared bankrupt;
5. they are independent and not influenced by parties other than the potential group members; and
6. they publish clear and understandable information on their compliance with the aforementioned criteria and on their sources of financing, the structuring, management and membership of their organisation, their statutory purpose and their activities. The authorisation given by the Minister remains valid indefinitely, but the Minister will regularly assess whether the legal entity still complies with all of the authorisation’s conditions.
• An interprofessional organisation for the defence of SME interests, which is a legal entity and has a seat in the Belgian High Council for the Self-Employed and the SME.
• A legal entity that has as its statutory purpose the protection of SME collective interests, and which is recognised as such in another member state.
• Where a legal entity does not fall within any of the three previous categories, they can act as a group representative on an ad hoc basis. In that case, the court before which they bring their claim will need to assess whether they satisfy the criteria to be authorised to act as a group representative.

There is no strict numerosity requirement for the Belgian action for collective redress. Rather, courts can declare an action for collective redress inadmissible when it appears that bringing a claim through such an action is not more efficient than bringing it through ordinary proceedings. As part of this assessment, courts will assess the size of the potential group and whether it is possible to bring a claim on behalf of that group in the form of a joint or other type of action. Where the potential group appears too small to satisfy the efficiency requirement, a court could then declare the action inadmissible. In 2016, an action with a potential group of 183 consumers was declared admissible, showing that this assessment is rather light-touch.

The Belgian action for collective redress has a generalised opt-in system, and as such, actions on an opt-out basis are not possible (even though they were under certain circumstances before the Representative Actions Directive was transposed). By way of exception, a collective settlement between a group representative and a defendant can use an opt-out mechanism if it is approved by a court. Such an opt-out settlement will then have preclusive effect on all group members who have not opted out of the settlement. This is with the exception of consumers whose habitual place of residence is not in Belgium and SMEs whose main establishment is not in Belgium, to whom an opt-int system must always apply. In addition, even collective settlements cannot use an opt-out mechanism when they relate to physical or moral harm suffered by the group members.

The group is only composed at the end of the proceedings (see 4.2 Overview of Procedure), after a judgment on the merits has already been issued. As such, potential group members can hold off on joining the action until they know whether it is successful, and judgments dismissing an action for collective redress are never binding on group members. Following a judgment on the merits, a publication of the judgment in the Belgian official journal – and potentially through other channels – will ask interested parties to register their claim with the court registrar. A court-appointed claims handler will then verify those claims and draft a list of group members, which is to be approved by the court. Once approved, the defendant will make redress on the basis of that list and under the supervision of the claims handler.

Although related actions can be joined under general Belgian procedural rules, the statutory provisions governing the Belgian action for collective redress contain a number of specific exceptions to this, as follows.

• The joinder of an action for collective redress and an individual claim for damages is expressly prohibited.
• Two actions for collective redress can only be joined to the extent that no decision on the admissibility of either claim has been reached.
• Third parties can only join or be joined to proceedings on an action for collective redress in the following circumstances:
1. if the request to join a third party to the proceedings is made by the group representative, serves to bring a related claim for collective redress against another defendant and is made before the court has ruled on the admissibility of the action;
2. if the request to join a third party to the proceedings is made by a defendant and merely serves to have a judgment on the merits declared binding on that third party;
3. if the request to join the proceedings is made by an authorised group representative, with the goal of bringing a related action for collective redress against the defendant, before the court has ruled on the admissibility of the action; or
4. if the request to join a third party to the proceedings is made by a group representative or a defendant and serves to have a group member ordered to pay the costs and expenses of the proceedings, which have been caused by their own intentional or negligent conduct.

In an action for collective redress, Belgian courts have the standard court management powers that they have in other cases. At the request of the parties, the court will set a hearing schedule and a hearing date, but it can otherwise not deviate from the process set out in 4.2 Overview of Procedure, for instance by ordering test cases.

An average action for collective redress in Belgium can currently be expected to take around four years to reach a judgment on the merits, although it may take longer if there are delays (eg, because of intermittent appeals).

The statutory provisions on the Belgian action for collective redress provide that the court must decide on the admissibility of the action within two months after the filing of the application for collective redress. However, this is not a binding deadline, and in practice courts issue their decision on admissibility around two years after the filing of the application. This is because parties tend to agree on or request briefing schedules so as to file submissions, which may take over a year. A recent change requires that the court hears the admissibility of the action for collective redress immediately at the first case management hearing (which is a few weeks or months after the filing of the application), unless the parties disagree. It seems unlikely that this will change the average timing for a decision on admissibility, given that parties will likely still agree on a briefing schedule.

Following a decision on admissibility (and the associated publication in the Belgian official journal, which may take several months), the proceedings are halted to allow the parties to negotiate. This will take between three and six months, although the negotiation period can be extended once by a maximum of six months or can be terminated prematurely if one party remains passive.

After the negotiations phase, the phase on the merits will start, which is also likely to take around two years.

Belgian procedural rules do not allow for summary disposal of claims or the acceleration of claims. Rather, the rules on setting briefing schedule and hearing dates are quite flexible, and the parties can agree or request the court to set very short or very long briefing deadlines.

Claims can be delayed by making proceedings inactive, which means the proceedings will not progress until either party activates them again.

Costs

Generally speaking, Belgian procedural rules provide that the losing party must pay a relatively low lump-sum indemnity for legal fees to the winning party. For actions for collective redress, the indemnity currently stands at EUR1,800, although it can be increased up to EUR15,000 if the winning party can demonstrate that there have been exceptional circumstances that have caused higher costs. However, it is worth noting that in a collective settlement between a group representative and a defendant, the group representative can request payment of his or her actual costs (rather than the lower indemnity).

In addition, defendants may be required to bear a number of additional costs, including the cost of certain publication measures that are ordered and the costs incurred by a claims handler for ensuring redress is made to all of the group members.

In exceptional circumstances (the presence of which must be assessed by the court), a group member can be joined to the proceedings by a defendant or the group representative and ordered to pay the costs and expenses caused by his or her own intentional or negligent conduct.

Funding

Litigation funding is allowed under Belgian law as a matter of principle, and only very limited rules exist around it. Specifically for actions for collective redress, Belgian rules require that Belgian group representatives evidence that they are independent and are not influenced by persons who are not consumers (for actions on behalf of a group of consumers) or the group members (for actions on behalf of a group of SMEs). This includes ensuring that no entity that has an economic interest in bringing the action (such as a third-party funder) can influence the group representative’s conduct of the proceedings.

In addition, group representatives must take certain steps to ensure that there is no such undue influence. This includes putting in place (and evidencing to the court) procedures to avoid undue influence as well as conflicts between the interest of the group members, any third-party funders and the group representative itself. Group representatives also have to provide public information on their sources of financing and must disclose details on any financing by a third-party funder in their application for collective redress.

Belgian procedural rules do not allow a court ruling on the merits of an action for collective redress to order any payments to a third-party funder (which is not a party to the proceedings), nor to the group representative in the reimbursement of any financing costs it may have incurred. Rather, the lump-sum indemnity for legal fees is the maximum that a group representative can recover. However, it is currently untested whether a group representative would be able to obtain any compensation for a third-party funder in a settlement agreement.

There is no obligation of pre-trial disclosure under Belgian law. As for trial disclosure, any party to the proceedings can request the production of certain specific documents from another party, or from a third party, but only under strict requirements. This requires serious and specific evidence that the other party or third party holds those documents, and that those documents contain evidence of a relevant fact. Generally speaking, Belgian courts are cautious in granting such disclosure. Specific rules may apply to specific types of claims. For instance, in claims for damages for breaches of competition law, applicants may request the production of categories of documents (rather than specific documents).

Belgian evidentiary rules prohibit the use as evidence of legally privileged correspondence with – and advice from – Belgian lawyers, as well as various other persons, including in-house counsel who are a member of the Belgian Institute of Company Lawyers, notaries and registered auditors.

Belgian actions for collective redress are broadly aimed at obtaining redress, which can take the form of compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid. Injunctive relief can be obtained through a separate action for injunctive relief.

Court-Approved Settlements

The Belgian action for collective redress has a separate settlement mechanism, which allows group representatives and defendants to enter into a settlement agreement either before an action for collective redress has been brought or during such proceedings. They can then present that settlement to the court, with the aim of having it approved and declared binding on the group members involved.

Before declaring the settlement binding, the court will scrutinise various aspects of the agreement, namely:

• whether the redress awarded to the group or a subcategory of the group is plainly unreasonable;
• whether the time period within which potential group members can opt in or out (depending on the system selected) is plainly unreasonable;
• whether the agreed measures to publicise the settlement are plainly unreasonable; and
• whether the compensation awarded to the group representative exceeds the costs it has actually incurred.

Contrary to the situation where the court is required to adjudicate the matter (and where potential group members can only be required to join the group on an opt-in, and not an opt-out, basis), the parties to a settlement agreement can choose whether to apply an opt-in or an opt-out mechanism. However, an opt-in system must always apply to consumers whose habitual place of residence is not in Belgium, to SMEs whose main establishment is not in Belgium, and to any group member when the harm for which redress is sought is physical or moral harm.

Out-of-Court Settlements

In addition to the formal system of court-approved settlements, an informal system of out-of-court settlements has become commonplace in Belgian actions for collective redress. This entails that during the proceeding, the defendant and the group representative enter into a settlement agreement that is then not presented to the court for approval.

As a result, the settlement is not subject to scrutiny by the court (especially in relation to the group representative’s cost compensation). However, absent court approval, the settlement can only become binding (and have preclusive effect) for group members who expressly opt in to the settlement agreement in accordance with the criteria set up in that agreement. It is market practice in Belgium that the group representative sets up a landing page where interested consumers register their claim to obtain compensation.

Judgments on the merits issued by a court in an action for collective redress are always binding on the defendant and the group representative, as well as any group members who opt into the group. This means that those parties are precluded from bringing new claims in relation to the same facts or harm against each other.

After a judgment on the merits ordering a defendant to make redress, a claims handler will be charged with the process of compiling a list of group members that should receive redress. On the basis of that list, the group representative will need to make redress under the supervision of the claims handler. The court remains seized of the matter until the redress process is complete, and so any disputes during that process can be adjudicated by the court.

The concept of third-party funding is still developing in Belgium. As mentioned, the Belgian legislator has introduced limited constraints on this type of funding in the context of collective redress, requiring inter alia that a qualified entity must refuse financing from persons (aside from group members) who have an economic interest in the action and must indicate in each application how the action is financed (see 4.9 Funding and Costs). Very recently, the Flemish Bar Association, the overarching regulatory and representative body for all Bar associations in the Dutch-speaking region of Belgium, adopted recommendations concerning the role of lawyers in third-party funding, applicable to all forms of commercial third-party funding. It seems likely that this is just a first step and that this area will further evolve in the near future. Once again, the EU is expected to take action in this area. In its 2020 resolution on Responsible Private Funding of Litigation, the European Parliament urged the European Commission to propose an EU Directive regulating third-party litigation funding. The Parliament highlighted the need for the Commission to ensure access to justice while implementing safeguards against conflicts of interest, abusive litigation and other risks. The European Commission agreed to monitor developments and launched a mapping study, which is expected to conclude by the end of 2024

The legislation implementing the Representative Action Directive has just been adopted in 2024, so no legislative reform is expected in the short term. However, implementing decrees still need to be issued. In particular, it must be established how a legal entity can be recognised by the Minister of Economic Affairs as a qualified entity for bringing actions for collective redress.

Additionally, the King may further specify rules concerning:

• the content and form of the publication of a decision on the admissibility of a Belgian action for collective redress; and
• the manner in which consumers and/or SMEs can notify the court registry of their decision to join the group (“opt-in”) after the decision on the merits.

In addition, the scope of the Representative Actions Directive is likely to expand as new EU directives and regulations are adopted. For instance, the Representative Actions Directive was already amended in 2022 to also allow for representative actions for breaches of the Digital Service Act. Similarly, the Digital Markets Act provides that representative actions can be brought for infringements by gatekeepers of provision of the Digital Markets Act that harm – or may harm – the collective interests of consumers.

In the environmental context, it is noteworthy that the strict requirement from the Eikendael judgment that associations must have a personal interest to bring an admissible action (see 1.1 History and Policy Drivers of the Legislative Regime) was abolished by the Belgian Supreme Court in a judgment of 11 June 2013, under the influence of the Aarhus Convention. This was seen as an important step for environmental associations to exercise their collective right of action. Furthermore, the implementation of the Representative Actions Directive has enabled Belgian actions for collective redress for inter alia violations of European Regulation 66/2010 on the EU Ecolabel.

Regarding the social aspect, since 2006, the public prosecutor in labour matters can bring an action before the labour court for violations of laws and regulations affecting all or part of a company’s employees. This right of action is occasionally regarded as a form of collective litigation, despite being initiated by an actor of justice. Future developments in this area are again anticipated due to the implementation of EU law, specifically the Equal Pay Directive, which requires member states to allow associations, organisations, equality bodies and workers’ representatives to bring claims on behalf of or in support of employees alleging unequal pay, upon the employees’ approval.