Contributed By Linklaters
The fundamental principle with regard to the onus of proof is that each party has the onus of proof of the facts it alleges, although the court has certain powers to order the production of particular pieces of evidence.
First, the court may order a litigating party to produce the elements of evidence that it possesses (Article 871 of the Judicial Code). It may specifically order a party – or even a third party – to produce a document that contains the proof of a relevant fact if there are serious, precise and concurring presumptions that the party concerned is in possession of this document. In certain matters, the court may request the public prosecutor’s office to gather evidence on any points of fact it indicates.
Except for the basic principles set out above, there is therefore no discovery under Belgian procedural law. The evidence produced before the court is, in most cases, the documentary evidence that is communicated between the parties during the instruction of the case. Documents cannot be subpoenaed at will or on the request of other parties, except within certain strict limits.
As discussed in 2.7 Interim Injunctions, above, a plaintiff may lodge a petition for descriptive seizure with the president of the Brussels Enterprise Court. In that case, the plaintiff may request a court-appointed expert to search the premises of the defendant and copy any documents (or, in the case of a “full” descriptive seizure, even proceed together with a bailiff with the attachment of any allegedly infringing products), to the extent the expert considers this to be relevant in order to corroborate its findings.