Contributed By Linklaters
Costs arising before filing a lawsuit are mainly related to the involvement of lawyers, patent attorneys and experts, who will need to gather all relevant information, assess the merits of a case and engage in relevant pre-litigation actions (eg, sending notice letters or filing protective briefs).
Court fees are fixed in Belgium and the amounts vary depending on the competent court and the stage of the proceedings (first instance or appeal) at stake.
Articles 851 and 852 of the Judicial Code provide that a foreign applicant or intervening party is obliged, in case the defendant is Belgian and claims this before any other exception, to provide a guarantee to compensate all costs and damages that the foreign applicant or intervening party may be ordered to pay in the framework of civil court proceedings. Exceptions to this rule apply if dispensation has been granted in a treaty or in other specific circumstances (eg, proof that the foreign applicant or intervening party has immovable or other seizable properties in Belgium).
For any cases with an introductory hearing as of 1 February 2019, the fixed registry fee is no longer due upfront when the case is entered on the docket, but becomes due and payable by the losing party once a final decision has been issued (or shared among the parties in case both parties prevail on a different point at issue as per the court’s decision) or by the claimant if the case has been removed from the docket.
Costs and fees arising in the course of the proceedings are generally collected while the proceedings are pending. The party claiming certain investigation measures may be ordered to (partially or fully) advance any costs or fees that may be due or form a reserve in that respect, eg, in case of the appointment of an expert or the hearing of a witness, and the other party may in some cases be ordered to contribute to that.
Belgian legislation provides that a party losing a court procedure needs to pay its own expenses and attorneys’ fees, and is required to pay the court fees, expenses and a lump sum compensation for the attorneys’ fees incurred by the prevailing party (Article 1017 and following of the Judicial Code).
If the value of the claim can be determined, that lump sum compensation for lawyers’ fees increases depending on the value of the claim (from a basic amount of EUR180 for claims below EUR250 and up to EUR18,000 for claims above EUR1,000,000.01). If the value of the claim cannot be determined, a fixed lump sum compensation of EUR1,440 will be awarded.
In both cases, the court may decrease or increase the lump sum compensation without exceeding certain minimum and maximum amounts, depending on the financial strength of the losing party (only to lower the amount), the complexity of the case, the contractually determined amounts for compensation of the losing party or the clearly unreasonable nature of the case (eg, using the amounts set out before: the basic amount of EUR180 may be lowered to EUR90 and raised to EUR360, the basic amount of EUR18,000 may be lowered to EUR1,200 and raised to EUR36,000, and the basic amount of EUR1,440 may be lowered to EUR90 and raised to EUR12,000).
In the United Video Properties/Telenet case, the CJEU held that the thresholds determined in the Belgian legislation should at least allow the prevailing party to recover from the unsuccessful party an appropriate and significant part of the reasonable costs incurred. This follows from Article 14 of Directive (EC) 2004/48 of 29 April 2004 on the enforcement of intellectual property rights (IPRED), which states that reasonable and proportionate legal costs and other expenses of the prevailing party should be borne by the unsuccessful party. Based on Article 14 of the IPRED, the CJEU also held that the reimbursement of expert costs that are closely and directly linked to a court procedure seeking to uphold an intellectual property right should not be provided for only in the case of a wrongdoing by the unsuccessful party (as was previously the case according to the case law of the Belgian Court of Cassation).
Notwithstanding the above judgment of the CJEU, the referring court (ie, the Antwerp Court of Appeal) decided in this particular matter that it could not set aside Belgian legislation on compensation for lawyers’ fees (ie, fixed lump sum compensation) and omitted to answer the question of whether the prevailing party was able to recover from the unsuccessful party an appropriate and significant part of the reasonable lawyers’ fees incurred. The Court of Appeal did, however, order full reimbursement of expert costs in line with the CJEU judgment that no wrongdoing of the unsuccessful party was required in this respect.