The provisions on class actions in the Belgian Economic Code have been partially annulled by a judgment of the Belgian Constitutional Court of 17 March 2016.
You will find below an overview of the issues decided by the Court :
- Limitation of the scope of application of the class action system to cases where the cause of the collective damage originates after the entry into force of the Belgian Class Action Law, which was on 1 September 2014: this is not against the Belgian Constitution. Potential victims of a collective damage originating before the entry into force of the Belgian Class Action Law still enjoy other protections, such as individual claims for damages.
- Limited summing up of the laws and European legal norms whose violation may lead to a class action (art. XVII.37 of the Belgian Economic Code): this provision also does not violate the Belgian Constitution. By limiting the laws whose violation may lead to a class action, the Belgian legislator was concerned with a specific sector, namely the sector of consumer disputes. The legislator was entitled to consider that a significant number of collective damage cases would arise in this specific sector.
- Limitation of legal entities and public organisations authorised to represent a group of dissatisfied consumers and the requirement for them to be licensed (art. XVII.39 of the Belgian Economic Code): this provision violates the Belgian Constitution.
- The plaintiffs had argued that the requirement for a licence was a discrimination against comparable foreign associations within the European Union which do not have such a licence.
- This provision violates the EU Services Directive 2006/123/EU.
- The requirement for a licence by a Member State violates Article 16 paragraph 2 of the EU Services Directive, according to which Member States may not impose restrictions on the free movement of services by requiring service providers based in other EU Member States to obtain licences issued by, or to enrol in a register kept by a professional association in, their territory.
- By not allowing representative associations from other EU Members States and from the European Economic Area which fulfil the conditions of the EU Services Directive to also act as a class representative, said provision of the Belgian Class Action Act violates both the Belgian Constitution and the EU Services Directive.
This means that a Belgian court confronted with a class action filed by an association which fulfils the conditions of the EU Services Directive may not declare such a claim to be inadmissible. The Belgian Class Action Act will therefore have to be modified to correct this.