On 29 April 2014, the new Belgian law on collective redress (the Law) was published in the Belgian Official Journal. The Law enables the collective recovery from companies of harm suffered by a large number of consumers due to the same contractual cause. It lists exhaustively a wide array of legal bases on the grounds of which the collective redress procedure can be lodged, including the laws on market practices, product liability, competition, intellectual property, medicines, and defective products. Extra-contractual or labour law claims cannot give rise to collective redress.
The collective redress procedure can be lodged only by a group representative, who will be able to act on behalf of a large number of adversely affected consumers who may not yet be known at the time of the initiation of the legal proceedings. This group representative must be either (i) an established organisation protecting consumer interests (which in practice includes only the consumer organisation Test-Aankoop / Test-Achats), (ii) other specialised organisations with at least three years legal personality and a core business that is linked to the harm suffered by the consumer group, or (iii) the Federal Ombudsman for consumers (Federale Ombudsdienst voor de consument / Médiateur fédéral pour le consommateur) whose role will nevertheless be limited to the negotiation phase. Consequently, lawyers and other organisations not fulfilling the criteria provided for in the Law are excluded from representing consumers in a collective redress procedure.
The Law grants exclusive competence to deal with collective redress procedures to the Courts of Brussels. The Court to which a collective redress procedure is referred will first verify whether the group representative meets the criteria set out in the Law and whether the collective redress procedure will be more effective than individual consumer claims. If these conditions are met, the Court can then decide to apply an opt-in (only consumers who have explicitly expressed their will to be part of the group) or opt-out system (consumers are automatically part of the group unless they explicitly say otherwise). However, the opt-in system is compulsory for foreign nationals.
The Law imposes in a first stage a mandatory negotiation phase, in which the group representative and the company concerned try to reach a collective redress agreement. If successful, the Court will formally approve and validate this agreement in a judgment. If the negotiations fail, the group representative can start actual legal proceedings on the merits. When a collective redress decision is adopted, the Court will appoint a liquidator. The liquidator will be in charge of listing the consumers who are entitled to receive redress and will be responsible for the execution of the collective redress solution.
The Law will enter into force on 1 September 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
