The Private Competition Enforcement Review: Belgium

Overview of recent private antitrust litigation activity

The Belgian legislator has recently added the abuse of economic dependence to the set of competition rules applicable in Belgium. This new rule aims at preventing unilateral conduct whereby an undertaking abuses another undertaking's economic dependence so that competition is likely to be affected on the Belgian market or a substantial part thereof.2

Economic dependence is defined as the:

subordinate position of an undertaking in relation to one or more other undertakings characterised by the absence of a reasonably equivalent alternative which is available within a reasonable time, under reasonable conditions and at reasonable cost, allowing the undertaking or undertakings to impose services or conditions which could not be obtained under normal market conditions.3

Since its entry into force in August 2020, this new provision has been successfully argued in several cease-and-desist proceedings before Belgian courts, even though the Belgian Competition Authority (BCA) has not yet ruled on the matter. The new provision may have a positive impact on private enforcement as it may be easier to demonstrate than an abuse of dominance.

For example, in October 2020, in a case opposing a distributor of children's clothing to its sole supplier (Woody Group), the president of the Ghent Enterprise Court decided that:

abusive refusal to sell and early termination by a supplier constitute an abuse of economic dependence prohibited by Article IV.2/1 of the [Code of Economic Law], or at least an unfair market practice, where the buyer is unable to find another supplier in the short term and the supplier's behaviour is part of a wider strategy to push the buyer out of the market.4

Also, in March 2021, in a case concerning a diamond seller and his bank (the only one willing to provide him with financial services), the president of the Brussels Enterprise Court issued a cease-and-desist order because the bank's refusal to provide certain services constituted an abuse of economic dependence.5 The Court defined the economic dependence as a 'subordination which implies an extreme degree of dependence'.6 This notion suggests the absence of a reasonable equivalent alternative and the possibility for the bank to impose different conditions from normal market circumstances.7 Concerning the abuse, the Court considered that the bank was aware of the absence of an alternative and the precarious position of the diamond seller (criterion of 'conscious business strategy'),8 and therefore that the suspension of financial services constituted an abuse of economic dependence. Finally, the Court decided that, if the bank's decisions affected which small and medium-sized enterprises (SMEs) could participate in the diamond business, its decisions had an immediate impact on competition.

In April 2021, the president of the Antwerp Enterprise Court considered that a distributor of hunting weapons was in a position of economic dependence on its suppliers and issued a cease-and-desist order.9 The Court considered the following elements to conclude the existence of a position of economic dependence of the distributor: (1) the distributor's relative market power (i.e., absence of alternative); (2) the products in question represented more than 90 per cent of the distributor's turnover; (3) brand awareness, product rarity and consumer loyalty; and (4) fear of severe economic disadvantage, retaliation or contract termination. In these circumstances, the Court considered that the refusal to sell the products to a distributor in a situation of economic dependence constituted an abuse. Note that the Court considered that the demonstration of potential damage to the professional interests of an undertaking was sufficient without having to demonstrate possible distortion of competition on the Belgian market.

In addition to abuse of economic dependence, other relevant cases have been decided in recent years, including:

  1. an action for injunction in Orange v. Telenet (2019);10
  2. a claim in an alleged illegal dawn raid in Proximus v. BCA (2020);11
  3. a case questioning the non bis in idem principle in Bpost (2020);12
  4. claims for cartel damages in Trucks (2020 and 2021);13 and
  5. a case with multiple parallel proceedings in Virton (2020–2021).14

Orange v. Telenet concerns the enforcement of a regulatory decision relating to Telenet's obligation to offer access to its network. The court issued a cease-and-desist order against Telenet to negotiate in good faith the conditions of access and sharing its network.

In Proximus, the Brussels Court of Appeal ruled that the dawn raid conducted by the BCA in this case was illegal. This finding had different consequences on the establishment of Proximus' abuse of dominance (margin squeeze) in 2004 and 2005, respectively. The 2004 infringement could not be evidenced without using the information gathered during the dawn raid, and the Court of Appeal therefore annulled the BCA's infringement decision in this regard. Conversely, the Court ruled that the 2005 infringement could be evidenced by the BCA without using the information gathered during the dawn raid, and therefore upheld the infringement decision in this regard. Finally, the Court did not pronounce the restitution of the fine imposed on Proximus by the BCA15 at that stage of the procedure.

Bpost concerns parallel prosecutions by two regulators (the BCA and the Belgian Institute for Postal Services and Telecommunications (IBPT)) against the same market conduct. The Brussels Court of Appeal annulled a fine imposed by the IBPT on Bpost, and the question arose of whether the principle of non bis in idem prevented the continuation of the proceedings against Bpost by the BCA for violation of competition law. The BCA issued a decision and fined Bpost, the Court of Appeal annulled the decision, and the Supreme Court overturned that judgment. The case was then referred back to the Brussels Court of Appeal, which, in February 2020, requested two preliminary rulings by the Court of Justice on the non bis in idem principle, which are still pending. The Advocate General's opinion was published in September 2021.

Recently, a Belgian court awarded damages on an ex aequo et bono basis in a private damages action brought in Belgium relating to the European Trucks case. In March 2021, the Ghent Court of Appeal rejected a similar claim, ruling that the damage had not been demonstrated.

Finally, Virton confirms the parallel jurisdiction of the BCA and the courts in the field of interim proceedings.

General introduction to the legislative framework for private antitrust enforcement

Belgian courts have experienced private antitrust enforcement for years. Most of the case law concerns orders to terminate a competition law infringement, annulment of restrictive agreements or business associations' restrictive decisions, and, to a lesser extent, interim measures. Also, competition law arguments are often raised in broader business litigation cases, both as claims and defence arguments.

The case law on damages actions has been developing more recently. New follow-on proceedings, such as in the Trucks cartel and the Infrabel cases,16 show an increase in these proceedings before Belgian courts. In Infrabel, the BCA fined five companies for bid rigging in the context of a public contract in the railway sector launched by Infrabel. Subsequently, Infrabel launched a private damages action against the members of the cartel that were identified in the BCA's decision.

Further, the August 2020 introduction of the abuse of economic dependence infringement into Belgian law has had a noticeable impact on private enforcement in Belgium as it enables claimants to more easily challenge abusive conduct of undertakings. Some claimants have successfully obtained cease-and-desist orders in several cases, as discussed in Section I. For now, it appears that Belgian courts have been rather lenient with regard to the standard of proof that claimants must meet to demonstrate the existence of an abuse of economic dependence. The BCA is investigating several cases of conduct based on this new infringement, and it will be particularly interesting to follow the interaction between Belgian courts and the BCA once the latter has laid down the test to establish the existence of abuse of economic dependence in a formal decision.

With regard to the establishment of antitrust offences in general, Belgian courts very much follow EU antitrust case law because they apply either EU antitrust rules directly (Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU)) or Belgian law,17 which is closely in line with EU law except for the new abuse of economic dependence infringement. Belgian courts have regularly requested preliminary rulings from the Court of Justice of the European Union (CJEU) and have asked the European Commission to intervene as amicus curiae to support their own enforcement of EU antitrust rules. Belgian courts may also request the opinion of the BCA or ask the Belgian Supreme Court for a preliminary ruling in competition matters. Finally, in follow-on actions, Belgian courts are accustomed to giving full effect to the decisions of the European Commission and the BCA, and take due account of decisions from other competition authorities.

Different procedures are at the disposal of claimants in private enforcement actions. Private damages actions, as other legal actions between undertakings, are typically introduced before Belgian enterprise courts. These actions may be lengthy, and parties may not always desire to publicise their dispute. The parties may therefore opt for settlement and arbitration procedures when possible.

Undertakings may also seek cease-and-desist orders against competition law infringements. This procedure must be based on an extra-contractual liability claim, and offers the advantage of being fast (just as in a procedure for interim relief) and resulting in a decision on the merits. Cease-and-desist proceedings do not give rise to damages, but still have a wide scope as, for instance, they allow the court to order the defendant to contract,18 or to issue an offer and negotiate in good faith19 if the defendant refuses to contract. Claimants must be aware that the limitation period is one year after the termination of the facts relied upon to introduce a cease-and-desist action.

Further, claimants may request interim measures before Belgian courts when the urgency so requires. This procedure is less common in competition matters as claimants must prove the urgency of the case (contrary to cease-and-desist proceedings where the urgency is presumed) and a prima facie infringement of competition law, but remains quite useful in some circumstances; for instance, where the claimant may request a procedure in 'extreme urgency', or even a unilateral procedure, or when some specific measures that could not be requested under the cease-and-desist procedure are sought. Interim measure court orders are not decisions on the merits and claimants may prefer cease-and-desist procedures or request interim measures from the BCA, which has issued numerous interim measures decisions in recent years.

A request for a unilateral procedure was declared admissible in a case concerning bicycle races. A cycling team had been refused the right to participate in two races three weeks before the competition. It was proposed to schedule a meeting at least eight days before the competition to discuss the matter, but the meeting ultimately did not take place. The unilateral character of the procedure was accepted by the court as the damage that the claimant was exposed to was particularly important and it was practically impossible to organise an adversarial procedure due to the specificities of the case. Indeed, the time frame was particularly tight, and it was not possible to identify all the persons involved in the organisation of the races or to summon the defendant within the time frame.20

Also, in a case in the automobile sector concerning a clause restricting the sale of cars to leasing companies, Belgian courts granted the plaintiff provisional compensation and allowances for a period of four years.21 Further, in an interesting merger control case, the president of the Brussels Commercial Court declared the Court competent in a case brought by a competitor to suspend the implementation of the merger, which had been notified to the BCA but was not yet approved.22

Finally, competition law infringements are governed by the general statute of limitations with regard to civil liability (10 years for contractual liability and five years for tortious liability).23 However, specific rules apply to private enforcement actions with regard to the starting point and causes of interruption of the time limit. Hence, the limitation periods for bringing private damages actions begin to run from the day following the day on which the competition law infringement ended and the claimant became aware or should reasonably have become aware of: (1) the conduct and the fact that the conduct constitutes a competition law infringement; (2) the fact that the competition law infringement caused the claimant damage; and (3) the identity of the perpetrator of the infringement. In the case of single and continuous infringements, the infringement is deemed to have ceased on the day on which the last infringement ceased.24 Further, Belgian law provides that these limitation periods are interrupted by any act of a competition authority aimed at the investigation or prosecution of an infringement of competition law to which the action for damages relates.25

Extraterritoriality

i Jurisdiction

In most instances, Regulation (EU) No. 1215/2012 (the Recast Brussels Regulation)26 regulates the jurisdiction of Belgian courts in private enforcement proceedings with an international feature. Outside of the scope of the Recast Brussels Regulation, the relevant international treaties and the Belgian Code of Private International Law apply, depending on the case specifics.

The general rule under the Recast Brussels Regulation is that Belgian courts have jurisdiction when the defendant is domiciled in Belgium.27 If some of the defendants are not located in Belgium, the claimant may bring an action against all the defendants before the courts of one Member State when the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of inconsistent judgments resulting from separate proceedings.28 In a follow-on proceeding brought against cartelists located in several Member States, the CJEU ruled that the claimant was entitled to bring all the cartelists before the courts of one Member State as they had been found to participate in a single and continuous infringement of competition law.29

Also, a claimant may sue the defendant before the courts of the place where the harmful event occurred or may occur,30 which includes both the place where the damage occurred and the place of the event giving rise to it.31 The CJEU decided that a claimant may bring an action in the place where the claimant has its registered office, where the cartel is definitively concluded and where the market affected by the infringement is located.32 In Kapitol, the Brussels Court of Appeal held that Belgian courts had jurisdiction to hear a case brought by a Belgian claimant against an Austrian company as the competition law infringement was implemented and had direct effects on the Belgian market.33

Further, the CJEU recently provided clarification to determine which legal entities of a group can be sued in follow-on actions, which may have a direct impact on a court's jurisdiction to hear a case. In Sumal, the court decided that a claimant may sue, for damages, either a parent company that was sanctioned by the European Commission for a specific restrictive practice or a subsidiary of that company not mentioned as such in the Commission's decision, to the extent that these entities together constitute a single economic unit within the meaning of EU competition law. The claimant must thus evidence the existence of economic, organisational and legal links between the two companies, as well as a specific link between the economic activities of the subsidiary sued and the subject matter of the infringement established in the Commission decision. These findings are of particular interest in Belgium where a great number of international companies have subsidiaries that could potentially be targeted by claimants in follow-on actions.

With regard to the enforceability of jurisdiction clauses, the CJEU held in CDC v. Akzo Nobel34 that jurisdiction clauses were enforceable with regard to cartel-related claims only to the extent that these clauses explicitly referred to disputes in connection with liability incurred as a result of an infringement of competition law. Later, in EBIZcuss.com,35 relating to an action for damages in an abuse of dominance case, the CJEU held that jurisdiction clauses did not need to make an explicit reference to competition law infringements to be enforceable.

ii Governing law

The law applicable to the finding of a breach of competition law is Belgian or EU competition law when an anticompetitive conduct affects the Belgian market or has an appreciable effect on trade between Member States.

The governing law applicable to actions for damages is determined by Regulation (EC) No. 864/2007 (Rome II)36 in most instances. Outside of the scope of Rome II, the relevant international treaties and the Belgian Code of Private International Law apply, depending on the case specifics.

As a general rule, the law applicable to non-contractual obligations arising out of a breach of competition law is the law of the country where the market is, or that is likely to be, affected.37 When a breach of competition law affects several countries and several defendants are being sued, Rome II authorises the application of one law only before the same judge under certain circumstances.

First, when a breach of competition law affects, or is likely to affect, more than one country, the claimant that sues before the court of the defendant's domicile may choose to base its claim on the law of the court seized, provided that the market in that Member State is among those directly and substantially affected by the restriction of competition. Further, when the claimant sues more than one defendant before that court, it can choose to base its claim on the law of that court if the breach of competition directly and substantially affects the market in the Member State of that court.38 Finally, Rome II expressly provides that governing law clauses are ineffective with regard to non-contractual obligations arising from competition law infringements.39

Standing

Any natural or legal person prejudiced by an infringement of competition rules has legal standing to claim full compensation for the resulting harm.40

An action may also be brought, even as a declaratory action, to prevent the violation of a right that is seriously threatened.41

There is no specific limitation on the persons who can bring a case. In private enforcement actions, the claimants are typically direct purchasers or competitors (e.g., collective boycott), but can also be indirect purchasers, distributors or final consumers.

With regard to legal standing, cease-and-desist proceedings offer several advantages in the context of private enforcement. First, legal standing is easier to demonstrate as the claimant does not have to demonstrate a right and a damage, but only the existence of an unfair practice that may affect the professional interests of the undertaking.42 This looser requirement may facilitate private enforcement actions. This may be particularly useful in competition cases where the damage is complex to demonstrate, such as in abuse of dominance cases.43 For example, the president of the Brussels Commercial Court ruled that legal standing exists when the claimant is a competitor of the defendant and claims that the latter infringed a statute.44 In another case, distributors of a selective distribution network were found to have legal standing in an action lodged against a non-approved reseller that sold the same products outside the network.45

Second, professional authorities, as well as a professional or inter-professional groups with a legal personality, may seek a cease-and-desist order to defend their collective interests as defined in their statutes.46 Professional authorities or groups may thus represent their members, without demonstrating that each of their members has legal standing.47 In practice, this procedure may be particularly useful when the claimants do not want to appear directly in an action brought against their supplier or contracting party for fear of retaliation.

With regard to summary proceedings, an action is admissible only to the extent that the court recognises the urgency of the matter based on the specific circumstances of the case. The court will rule on an interim basis on grounds of a prima facie infringement of competition law.

The process of discovery

The process of discovery in Belgium is nothing compared with discovery in the US or in the UK. However, the legislator has recently amended the law to facilitate claimants' access to the necessary documents to support their claim for compensation.

The Judicial Code provides general procedural rules that offer applicants the possibility to request an order from the court towards a party to the proceeding or a third party, including the BCA, to produce documents that are expected to prove a fact that is relevant for a decision on the case, provided that there are serious, precise and concordant indications that this (third) party holds the relevant documents.48 Even when these conditions are met, the court enjoys a margin of appreciation in issuing the disclosure order.49 Obtaining a disclosure order may prove difficult, and claimants are often in critical need of this evidence to successfully support their case.

This explains why specific provisions relating to competition law matters were recently introduced into Belgian law to ease the burden of proof that lies on the applicant requesting the disclosure of documents held by other (third) parties. Under these rules, claimants must identify the category of documents requested (e.g., nature, object, content) as precisely as possible,50 and courts, after assessing the proportionality of requests and balancing the legitimate interests at stake,51 may order (third) parties to disclose the relevant documents in their possession.52 There is no additional condition to fulfil, but courts retain a certain margin of appreciation. In their assessment of the proportionality of demands, courts take due account of the context of the claims for damages, and whether the disclosure (or absence thereof) may impact the effective enforcement of competition rules.53

Courts may adopt measures to protect the confidentiality of the information requested (e.g., production of a non-confidential version or conducting the hearing behind closed doors).54 Courts invite the parties ordered to produce documents to submit written comments and may authorise those parties to participate in oral hearings.55

Further, if none of the parties can reasonably provide the information sought, the court may request that the BCA produce information contained in its file, with certain limitations; settlement submissions and leniency statements, as well as internal documents and letters exchanged between national competition authorities, may not be disclosed.56 Also, some documents may be disclosed only when the BCA has closed its procedure. These include: documents containing information provided by an individual or a legal person expressly for the purpose of a procedure initiated by the BCA; documents containing information prepared by the BCA and sent to the parties in the course of BCA proceedings; and withdrawn transaction proposals.57 The courts invite the BCA to make written observations on the proportionality of a request to disclose information from the BCA's file.58

In the case of breach of a disclosure order, courts may sanction parties that refuse to disclose the requested documents – including with a fine of between €1,000 and €10 million on the party and potentially on its legal representatives – and grant damages in certain circumstances.59 Further, the court may draw any adverse conclusions it deems appropriate in the case of refusal by a party to produce the requested documents. This may include considering the disputed fact (that the requested documents may have evidenced) proven, or certain claims and defences being rejected.60

Use of experts

The use of experts, economists in particular, is quite common in private enforcement procedures. Expert reports are usually used to measure the damage suffered, as well as the possible overcharge passed on to the claimants' own clients or customers, etc.

Courts can appoint experts ex officio or at the request of the parties. The parties may also submit expert reports on their own initiative.61

The judicial expert's report is not legally binding on the court.

Expert reports may often trigger heated debates that may unduly drag the procedure on if not confined by the parties and the court to a well-defined question.

On a different note, the BCA or the European Commission may provide observations to the court, ex officio or at the request of the latter.62 This amicus curiae procedure may be useful in practice to provide guidance on technical elements; for instance, on market definition or in assessing the dominant position of a company.

Class actions

Class actions do not exist as such, but Belgian law provides for the possibility to introduce collective recovery actions in limited circumstances. Collective recovery actions are authorised in private antitrust enforcement, but law firms are prevented from representing injured parties in these proceedings. To our knowledge, there have been no collective recovery actions in a private antitrust enforcement case in Belgium to date.

Collective recovery actions may be introduced by authorised representatives only (i.e., certain consumer protection associations, associations with legal personality approved by the relevant minister and whose corporate purpose directly relates to the collective harm suffered by the group, the Federal Consumer Mediation Service or inter-professional organisations for the defence of SMEs' interests).63 Collective recovery actions are authorised only where their use appears more efficient than stand-alone ordinary actions.64

Concerning the beneficiaries of collective recovery actions, Belgian law provides for opt-in and opt-out systems.65 In the opt-in system, only those who expressly state their willingness to join the claimants' group are included. In the opt-out system, any injured party is presumed to be part of the group unless a party indicates the contrary. The option chosen has consequences for the identification of the beneficiaries of the compensation and the persons bound by the res judicata effect of the decision. The choice of whether to opt-in or opt-out is exclusively for the court to decide. For non-residents, the opt-in system is the only option available.

There are four phases marking the procedure of collective recovery actions: an admissibility/filtering phase, a negotiation phase, the litigation phase and, finally, the enforcement phase aimed at distributing the compensation awarded among the consumer members of the group, via a judicial liquidator.

A new directive on representative actions for the protection of the collective interests of consumers was adopted on 25 November 202066 and should be transposed into the Member States' legal systems by 25 December 2022. It introduces a model for collective actions that will be harmonised on numerous elements and will constitute a step forward. The new rules should enter into force by 25 June 2023. It remains to be seen whether this new piece of legislation will boost collective actions in Belgium.

Calculating damages

In accordance with general rules of Belgian tort law, claimants may be awarded damages if they demonstrate the following three conditions: there is a fault attributable to the defendant; the claimant suffers damage; and there is a causal link between the fault and the damage.

Several presumptions may help victims of competition law infringements to prove these three conditions. With regard to the existence of a fault, Belgian law provides that an infringement of competition rules established by a definitive decision of the European Commission67 or the BCA – or by a judgment of the Brussels Court of Appeal ruling on an appeal against a BCA decision – may not be subsequently contested by the defendant in an action for damages.68 Further, if the decision establishing the infringement originates from another Member State, the decision is prima facie evidence of a competition law infringement.69 With regard to the existence of damage, it is presumed under Belgian law that cartel infringements cause harm, but the infringer has the right to rebut that presumption.70 This presumption covers the existence of the damages only, not the amount.71 Further, Belgian law provides for specific presumptions with regard to passing-on arguments raised in proceedings involving direct and indirect purchasers (see Section IX).

Under Belgian law, the claimant may seek full compensation for its damage72 resulting from a competition law infringement (principle of full compensation). This includes compensation for the direct loss and the loss of profits, plus interests. Thus, claimants should be put in the situation they would have been if the infringement had not occurred. Conversely, Belgian law does not provide for the granting of punitive damages.

Quantifying damages is a particularly delicate process and is often one of the most difficult elements to demonstrate for claimants. In practice, claimants may use any method they seem appropriate, which often includes the production of a large amount of data, expert reports and economic modelling. To seek the information necessary to quantify the damage, Belgian courts may require the disclosure of information from the defendant, third parties and, in certain circumstances, the BCA, as explained in Section V. Further, the court may request assistance from independent experts or directly from the BCA to quantify the amount of damages, as explained in Section VI.

In their assessment of the quantification of the harm, Belgian courts may seek guidance from the relevant soft law documents published by the European Commission in this regard: the 'Guidelines for national courts on how to estimate the share of overcharge which was passed on to the indirect purchaser',73 the 'Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union',74 and the 'Practical Guide Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of The Treaty On The Functioning Of The European Union'.75

When courts are unable to quantify the harm precisely, they may choose to award damages to the claimant on an ex aequo et bono basis. Belgian courts used this option in Honda76 where the damage had occurred more than 20 years before the issuance of the judgment and was therefore extremely difficult to quantify precisely. Belgian courts also used this option more recently in first instance in the Trucks cartel case.

Pass-on defences

It is the claimant's responsibility to prove the existence and amount of the harm suffered. In this context, a passing-on argument may be used either as a defence argument in actions brought by direct purchasers or as an argument raised by indirect purchasers to evidence their own harm. Belgian law sets rebuttable presumptions for pass-on arguments, which differ depending on whether the action is brought by a direct or indirect purchaser.

If the action is brought by a direct purchaser, the defendant may argue that the claimant has passed on, in whole or in part, the overcharge resulting from the infringement and has, therefore, suffered no damage, or a much smaller one (pass-on defence).77

However, under Belgian law, the burden of proof of the passing-on of the extra cost lies with the defendant, who may reasonably request the production of evidence by the claimant or third parties in this regard.78 The notion of overcharge is defined under Belgian law as the difference between the price actually paid and the price that would have been charged in the absence of the infringement.79

If the action is brought by an indirect purchaser, the compensation depends on the existence of the passing-on of the overcharge by the direct purchaser. Indirect purchasers are presumed to have proved the existence of the passing-on if they demonstrate that the three following conditions are fulfilled: (1) the defendant has infringed competition law; (2) the infringement has caused additional costs to the defendant's direct purchaser; and (3) the indirect purchaser has purchased the goods or services affected by the competition law infringement, or has purchased goods or services derived from or containing them. This presumption may be rebutted if the court finds that the defendant has credibly demonstrated that the additional costs were not passed on, in whole or in part, to the indirect purchaser.80

Belgian courts hearing a damages claim may take due account of other actions for damages and court decisions (inside and outside of Belgium) related to the same competition law infringement, as well as of relevant information in the public domain arising from competition law enforcement by competition authorities or appeal bodies.81

Follow-on litigation

Belgian law provides for several presumptions aiming at facilitating follow-on actions.82 Indeed, an infringement of competition rules established by a definitive decision of the European Commission or the BCA is deemed to be irrefutably established, and an infringement of competition law established by a competition authority from another Member State constitutes prima facie evidence of an infringement. Also, there is a rebuttable presumption that cartel infringements cause harm. However, this presumption only covers the existence of the damage, not the amount. These presumptions facilitate damages actions as the claimant does not have to establish the infringement or the existence of damage.

A question was raised – and is still pending – in Infrabel,83 on whether these presumptions apply to infringements committed in whole or in part before the entry into force of the Implementation Act of Directive 2014/104 on 22 June 2017. In a recent damages claim following the Trucks cartel case, the Ghent Court of Appeal considered that the relevant legal fact that creates a presumption of damage is the existence of a cartel or the finding of its existence (the cartel decision). Therefore, the presumption of proof only applies to a cartel that persisted beyond 22 June 2017 or when a decision establishing the infringement was taken after that date.84

Beyond follow-on action cases, victims harmed by anticompetitive conduct can still bring a stand-alone damages action, but will not benefit from the presumptions detailed above.

Privileges

Documents covered by the legal privilege are confidential documents that cannot be disclosed to competition authorities or in court proceedings. This means that if these documents are produced in courts as evidence, the courts must disregard them.

The legal privilege covers correspondence, communication and other documents exchanged between external counsel and its clients (Belgian criminal law reprimands the violation of professional secrecy) and internal documents prepared exclusively in the context of obtaining external advice. This is the principle of the attorney–client privilege, which is widely recognised in Belgium.

Similarly, under Belgian law, legal privilege also applies to correspondence between in-house lawyers who are members of the Belgian Institute of Company Lawyers and their employers.85 However, legal privilege for in-house counsel applies only to proceedings before Belgian authorities based on Belgian law, and not in the context of a European Commission investigation carried out in Belgium, as EU law does not recognise the legal privilege for in-house lawyers.86 Neither does this privilege apply to BCA investigations based on EU competition law (Articles 101 and 102 of the TFEU).

Settlement procedures

Settlement procedures can be initiated at the initiative of the parties at any time during an ongoing judicial procedure before a court or outside any judicial action. In an ongoing damages claim, the court may suspend the procedure when the parties initiate a settlement procedure. The suspension may last for up to two years. In the absence of an ongoing judicial proceeding, a settlement procedure suspends the deadlines to introduce a damages claim.

General civil law provides that a settlement is a written agreement by which the parties terminate or prevent a dispute. Settlements are presumed to be final decisions and, therefore, no appeal is possible unless the cause is void or in the case of fraud or coercion.

Settlement procedures are highly encouraged because they may ease the difficulties typically raised by damages claims in competition law litigation, and are generally confidential and faster than judicial proceedings. Moreover, the BCA may significantly reduce the amount of the fine imposed on an undertaking that infringed competition law if the latter commits to pay damages to the victim or victims of the infringement.87 This can be a significant incentive to settle on compensation in certain cases. Finally, the settling infringer benefits from favourable treatment as it escapes (in part) the joint liability of its co-infringers (see Section XIV).

Arbitration

Belgian legislation incentivises the use of alternative dispute resolution to support the surge of private enforcement in its jurisdiction.

By contrast with other EU Member States, Belgian law expressly includes arbitration (arbitral awards) within the notion of consensual settlements used in the Private Damages Directive88 to enhance private enforcement before national courts.

Arbitration may offer a number of advantages, such as the choice of arbitrator, the language of the procedure, the expert, where necessary, limitation of the procedural duration, and, maybe above all, the avoidance of publicity. Arbitration may be particularly attractive when private enforcement covers several jurisdictions.

Arbitration may also facilitate the need to address a wide range of different situations: different types of harm (direct customers, indirect purchasers), different roles of violation infringers, different governing law, etc.

A claimant that has obtained an arbitral award against one infringer is deprived of the joint and several liability claims against the other infringers, which would not be the case had he or she obtained a court judgment. This illustrates that the arbitration route needs to be measured on a case-by-case basis. However, arbitration offers a number of advantages that ought to be seriously considered in private enforcement, by both claimants and infringers.

Note, however, that unlike the other alternative dispute resolution methods, arbitration does not suspend the limitation periods for bringing a private damages action for the duration of the procedure.89

CEPANI is the Belgian Centre for Arbitration and Mediation.

Indemnification and contribution

i Indemnification

The general procedural principle of joint and several liability for the harm caused by wrongdoing applies to companies that violated competition rules through joint behaviour.90 This means that each of the infringers is liable to support the compensation for the whole harm.

However, Belgian competition law limits the compensation to the harm caused to each party's own (direct or indirect) customers when competition law violator received full immunity under the leniency programme or is an SME with a market share below 5 per cent (if the application of the general rule of joint and several liability would jeopardise its economic viability and the SME is not a recidivist and was not a leader or coercer in the infringement). That said, these two categories of infringers may still be held liable when the claimant is unable to obtain full compensation from the other infringers (e.g., due to insolvency).91

ii Contribution

An infringer that has paid the claimant's full compensation is entitled to recover a contribution from any co-infringer for their share of the liability.92 This action can be brought in separate proceedings or by way of forced intervention in the principal private damages proceedings.

There are two exceptions to this rule:

  1. the amount of the contribution by an undertaking benefiting from full immunity shall not exceed the amount of the damage caused by the infringement to its own (direct or indirect) buyers or suppliers; and
  2. the amount of the contribution by an undertaking benefiting from full immunity shall not exceed the amount corresponding to its relative responsibility for the damage caused by the infringement to injured parties other than its (direct or indirect) purchasers or suppliers of the infringer (e.g., umbrella pricing).93

In the case of a settlement with only some of the infringers, the injured party may claim compensation for the remaining harm suffered from the non-settling infringers. However, if the non-settling infringers cannot afford to pay the remaining damages, the claimant may request compensation for the remaining damages from the settling infringers.

Future developments and outlook

Private enforcement of competition rules will continue to surge in Belgium and become part of each company's legal toolkit. If private enforcement has been on companies' agendas for a while, follow-on actions are dragging behind for now. The calculation of damages and access to necessary evidence may partly explain this belated take-off, although a lack of information and education on these issues could also be to blame. It remains to be seen whether new litigation vehicles or third-party litigation funding will boost these actions.

Given the BCA's scarce resources, private enforcement is clearly an efficient manner in which to obtain the protection of competition rights; in particular, via cease-and-desist orders.

In some cases, arbitration may be an attractive forum to obtain compensation for damage caused by a violation of competition rules, for both the infringer and the harmed company. Cases should be assessed carefully to establish which route to take in this regard.

The abuse of economic dependence argument will, in the authors' view, increase over the next few years as the procedure covers a number of abusive situations without being forced to prove dominance, which is often difficult to demonstrate.

Footnotes

1 Bruno Lebrun is a partner, and Ulysse Bertouille and Candice Lecharlier are associates, at Janson.

2 Article IV.2/1 of the Code of Economic Law (CEL).

3 Articles I.6 and 12 bis, CEL.

4 Summary of the case available at https://jura.kluwer.be/secure/documentview.aspx?id=rf300133283&state=changed; Ghent Enterprise Court, De Troyer v. Woody, 28 October 2020 (Case A/20/02490).

5 Brussels Business Court (president), X v. E, 16 March 2021 (Case A/20/04391).

6 id., Paragraph 40.

7 id., Paragraph 45.

8 ibid. Translated from French.

9 Antwerp Enterprise Court, Pletsers NV v. Blaser Jagdwaffen GmbH & Mauser Jagdwaffen GmbH, 16 April 2021 (Case A/21/00024).

10 Antwerp, 11 April 2019, Competitio, 2020, p. 131.

11 Brussels, 7 October 2020, Competitio, 2020, p. 345.

12 Decision of the Belgian Institute for Postal Services and Telecommunications Council of 20 July 2011 on the conventional tariffs of bpost in 2010; Competition Council, Decision No. 2012-P/K-32, 10 December 2012; Case C-340/13, bpost v. IBPT [2015] ECLI:EU:C:2015:77; Brussels, 10 March 2016, R.D.C., 2016, p. 759; Brussels, 10 November 2016, R.D.C., 2017, p. 865; Court of Cassation, 22 November 2018, Competitio, 2019, p. 21; C-117/20, bpost v. Belgian Competition Authority [2021] ECLI:EU:C:2021:680.

13 Ghent, 1 March 2021, R.D.C., 2021, p. 946.

14 Brussels, 23 September 2020, Competitio, 2020, p. 255.

15 Competition Council, Decision No. 2009-P/K-10, 26 May 2009, Case CONC-P/K-05/0065.

16 Belgian Competition Authority, Decision No. ABC-2017-I/O-16-AUD, 2 May 2017, Case CONC-I/O-13/0031.

17 Articles IV.1, IV.2 and IV.2/1, CEL.

18 Termonde Commercial Court (president), 3 November 2010, R.C.B., 2011, p. 214 ; Tongres Commercial Court, 30 December 2008, Annuaire Pratiques du Commerce et Concurrence (Ann prat), 2008, p. 994.

19 Court of Cassation, 23 June 2005, R.G.C.04.186.F, Ann prat, 2005, p. 630; and see Orange v. Telenet analysed in Section I.

20 Liège Commercial Court, 23 April 2007, R.R.B. 2007/111, unpublished. For more details on this case, see X Taton, T Franchoo, N Baeten and I Rooms, 'Mededingingsrecht en gereguleerde sectoren/droit de la concurrence et secteurs régulés, Les actions civiles pour infraction au droit de la concurrence – Chronique de jurisprudence (2004-2010). 2ème partie Private handhaving van het mededingingsrecht in België – Overzicht van rechtspraak (2004-2010). 2de deel' R.D.C. – T.B.H., 2014/3, p. 230, No. 69; and H Boularbah and X Taton, 'Les procédures accélérées en droit commercial', in G-A Dal (ed.), Le tribunal de commerce: procédures particulières et recherche d'efficacité (Larcier, 2006), pp. 32 and 33, No. 44.

21 Brussels (réf), 7 February 2005, 2004/KR/260, unpublished; for more details on this case, see X Taton, T Franchoo, N Baeten and I Rooms (footnote 20), p. 233, No. 75.

22 Brussels Commercial Court, 20 December 2005, R.K.260/05, unpublished; see X Taton, T Franchoo, N Baeten and I Rooms (footnote 20), p. 229, Nos. 65 and 68.

23 Article 2262 bis, Civil Code.

24 Article XVII.90, Paragraph 1, CEL.

25 id., Article XVII.90, Paragraph 2.

26 Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

27 id., Article 4.1.

28 id., Article 8.1.

29 C-352/13, Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel NV et al. [2015] ECLI:EU:C:2015:335.

30 Article 7.2, Recast Brussels Regulation.

31 C-882/19, Sumal [2021] ECLI:EU:C:2021:800, point 65; C-451/18; Tibor-Trans [2019] EU:C:2019:635, points 24 and 25.

32 Tibor-Trans (footnote 31); C-27/17, flyLAL-Lithuanian Airlines [2018] ECLI:EU:C:2018:533; and Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel NV et al. (footnote 29).

33 Brussels, 21 November 2003, referred to by Court of Cassation, 23 June 2005, Telekom Austria AG v. Kapital SA, C040186F; Brussels, 13 November 2014, Kapital SA v. Magyar Telekom, Ann prat., 2014, p. 1233; N Neyrinck, Manuel de droit belge de la concurrence: Les pratiques restrictives de concurrence (Bruylant, 2021), p. 588, No. 749.

34 See footnote 29.

35 C-595/17, EBIZcuss.com [2018] ECLI:EU:C:2018:854.

36 Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II).

37 Article 6.3(a), Rome II; Brussels, 8 March 2012, 2010/AR/1123, unpublished, referred to in X Taton, T Franchoo, I Rooms and N Baeten, 'Les actions civiles pour infraction au droit de la concurrence', Chronique de jurisprudence (2011–2015), T.B.H. – R.D.C., 2017/8, p. 821, No. 84, footnote 383.

38 Article 6.3(b), Rome II.

39 id., Article 6.4.

40 Article XVII.72, CEL.

41 Article 18, subparagraph 2, Judicial Code.

42 A Tallon, La procédure, Second edition (Larcier, 2012), p. 65, point 70; N Neyrinck (footnote 33), p. 567, No. 758.

43 N Neyrinck (footnote 33), p. 567, No. 758.

44 X Taton, T Franchoo, N Baeten and I Rooms (footnote 20), p. 222, No. 43.

45 N Neyrinck (footnote 33), p. 567, No. 758; Brussels Commercial Court, 6 March 1995, Ann prat, 1995, p. 754.

46 Article XVII.7, CEL.

47 N Neyrinck (footnote 33), p. 567, No. 758.

48 Article 877, Judicial Code.

49 D Mougenot, 'L'administration de la preuve et les mesures d'instruction', in H Boularbah and F Georges (eds), Actualités de droit judiciaire (Larcier, 2013), p. 317.

50 Article XVII.74, Section 1, indent 2, CEL.

51 id., Article XVII.74, Section 2.

52 id., Article XVII.74, Section 1.

53 ibid.

54 id., Article XVII.75.

55 id., Article XVII.76.

56 id., Articles XVII.77 and XVII.79, Section 2.

57 id., Article XVII.79, Section 1.

58 id., Article XVII.78, Section 2.

59 id., Article XVII.81; see also Article 1385 bis, Judicial Code.

60 Article XVII.81, Section 4, CEL.

61 Article 962, Judicial Code.

62 Article IV.77, CEL.

63 id., Article XVII.39.

64 id., Article XVII.36.

65 id., Article XVII.38.

66 Proposal for a Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers.

67 Article 16.1 of Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty; Brussels Commercial Court, 24 April 2015, RCB, 2015/3, p. 212; and Brussels Commercial Court, 24 November 2014, RCB, 2015/1-2, p. 37.

68 Article XVII.82, Section 1, CEL.

69 id., Article XVII. 82, Section 2.

70 id., Article XVII.73.

71 See Law of 6 June 2017 inserting Title 3, 'L'action en dommages et intérêts pour les infractions au droit de la concurrence', M.B., No. 54-2413/001, 12 June 2017, p. 19. See also N Neyrinck (footnote 33), p. 618, point 782.

72 Article XVII.72, CEL.

73 C/2019/4899, OJ C 267, 9 August 2019, pp. 4–43.

74 OJ C 167, 13 June 2013, pp. 19–21.

75 SWD(2013) 205, 11 June 2013.

76 Ghent Commercial Court, 23 March 2017, TBM, 2017, p. 179.

77 Article XVII.83, CEL.

78 id., Article XVII.83.

79 id., Article I.22.17°.

80 id., Article XVII.84.

81 id., Article XVII.85.

82 id., Article XVII.82.

83 See footnote 16.

84 Ghent Court of Appeal, Man S.E. and AB Volvo v. Bevatrans N.V., 1 March 2021 (Cases 2019/AR/1255 and 2019/AR/1393).

85 Article 5, Act of 1 March 2000 establishing an institute of in-house lawyers.

86 Case C-550/07, Akzo v. Commission [2010] ECLI:EU:C:2010:512.

87 Article IV.60, CEL.

88 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.

89 Article XVII.91, CEL.

90 id., Article XVII.86, Paragraph 1.

91 id., Article XVII.86.

92 id., Article XVII.87, Paragraph 1.

93 id., Article XVII.87, Paragraph 2.

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