By an Act dated 6 June 2017, Belgium transposed the European Directive regarding actions for damages for infringements of competition law. The new provisions also apply to class actions of consumers. Class actions are extended to infringements of EU competition law.
The Act entered into force on 22 June 2017, but the procedural provisions will not apply to procedures introduced before 26 December 2014.
The Act introduces inter alia the following key principles:
- Right to full compensation: Both direct and indirect victims can seek full compensation for the harm suffered. The Act does not introduce punitive damages.
- Rebuttable presumption that competition law infringements cause harm: The burden of proof that there is no harm has shifted to the defendant. This is equally true if an indirect customer proves the extra cost of the direct purchaser.
- A final decision of a competition authority is irrefutable evidence of the competition law infringement: A final decision of the Belgian Competition Authority (BCA) or of the Court of Appeal upon appeal against the decision of the BCA proves the infringement. The same is true for a final decision of the European Commission or the final appeal decision against that decision. Final decisions rendered in other Member States constitute prima facie evidence of an infringement.
- Possibility to order the disclosure of evidence: Judges can order the disclosure of certain – even confidential - evidence by the infringer(s) or a third party, including the BCA, subject to penalties from EUR 1000 up to EUR 10 million. An important exception exists for leniency statements and (final) settlement submissions, and particular rules apply to evidence included in the file of a Competition Authority.
- Defendant’s right to invoke a passing-on defence: No compensation is due to the direct purchaser when the infringer can demonstrate that the overcharge was passed on to its own purchasers.
- Joint and several liability: The victim can claim full compensation from any of the companies at fault (with a limitation for the full immunity applicant). An important exception exists for small or medium-sized enterprises and immunity recipients, which are, under certain conditions, only liable to their direct or indirect purchasers. Companies that settle damages with victims are, in principle, not liable for harm caused by non-settling co-infringers.
- Time bar: The Act does not modify the current time bar period, but provides for an interruption during investigations or proceedings of a Competition law Authority and settlement procedures.
- Voluntary damage payment and fines: The Act provides that a voluntary payment to victims can be taken into account by the BCA in setting the amount of the fine.
While the Belgian Act stays mainly in line with the European Damages Directive, there are some noteworthy choices and other modifications, such as the time bar period, which has not been modified, the extension of the collective damages procedure to EU infringements, the impact of voluntary payment on potential fines from the BCA, the fact that no punitive damages have been introduced and the fact that the definition of cartel and the explanation in Parliament clarifies that this also covers horizontal cartels with a vertical aspect such as hub and spoke cartels.
This article was published in the Competition Law Newsletter of July 2017. Other articles in this newsletter:
- Google gets a record EUR 2.42 billion antitrust fine for its shopping service
- Recent European Commission merger decisions signal an increased focus on innovation
- ACM fines Dutch rail operator (NS) for an alleged abuse of dominance