Consequently, any company, consumer and consumers’ association that suffers harm, can claim
compensation for harm suffered against an infringing company. It is for example possible in case
of cartel or abuse of dominant position. In turn, companies have all the more reason to verify if
they are complying with the competition law. The goal of the law is the transposition of the
European Directive 2014/104/EU of 26 November 2014 governing this matter.
In a previous
article, we had already approached the innovations brought by this directive upon the first
settlement decision rendered by the Auditorat of the Belgian Competition Authority sanctioning 18
companies that had participated between 2002 and 2007 in coordinated increases of the retail price
of household products, perfumes and hygiene products in Belgium and imposing fines totalling EUR
The European Commission and the national competition authorities can find infringements of the
competition law (for example a cartel or an abuse of dominant position in a market) and impose
fines to the companies in question.
However they cannot grant damages to companies and citizens who are affected by those behaviours.
It is up to the national courts to examine the claims for damages caused by infringements of
The exercise of such actions remained however up to now theoretical. It was indeed difficult for
the victims seeking for compensation to access the evidence that would be useful in establishing
the infringement, to prove the extent of that harm or to avoid the problems related to statute of
2. The main innovations of the law of 6 June 2017
The European Directive proposes several solutions to those pitfalls.
Those solutions are taken over in the Belgian law in order to be incorporated in the Economic Law
The main measures are the following:
- The victims who have suffered damage through an infringement of competition law have the
right to full compensation for actual loss, for gain of which they have been deprived, plus
- A rebuttable presumption that cartel infringements cause harm is established along with an
irrefutable presumption attached to the infringement found by a final decision of the Belgian
In that case, the consumers and companies will not have to prove to the court the existence of
the infringement of competition law.
In this context, it is important to note that a final decision founding an infringement of
competition law rendered in another member state of the European Union by a national competition
authority or its review court does not create a presumption but is accepted at least as prima
facie evidence of the fact that an infringement of competition law has occurred and can be
examined with the other pieces of evidence brought by the parties.
Finally, according to the Court of Justice and the Council Regulation (EC) n°1/2003, a decision
of the European Commission sanctioning an anti-competitive behaviour constitutes binding proof
that the behaviour took place and was illegal. Any person or company affected by such behaviour
may bring the matter before a national court and seek compensation.
- The judge has the power to order the disclosure of certain evidence with regard to the
parties or third parties (or the Belgian Competition Authority if neither the parties, nor the
third parties can reasonably provide the evidence), limited to that which is proportionate, while
ensuring the protection of confidential information along with an absolute or partial protection
of certain evidence in the file of a competition authority. Penalties in the event of failure
with the disclosure order or destruction of pertinent evidence are also provided for.
- The fact that, if an infringement caused increases of the prices and that those overcharges
have been passed on along the supply chain, the persons who will have suffered ultimately the
harm will have the right to benefit from compensation. However, the company will not be bound to
compensate its direct purchaser when it can demonstrate that the direct purchaser has passed on
all or part of the overcharge on its own purchasers.
- If several undertakings infringe the competition law jointly, those infringers will be held
jointly and severally liable for the entire harm caused by the infringement. It means that the
injured party can require the full compensation for the harm from any of the companies at fault.
It should be noted that there is derogation for small or medium-sized enterprises and immunity
recipients, which are, under certain conditions, only liable to their direct or indirect
purchasers. Companies, which have made an consensual settlement further to a mediation,
conciliation or arbitration process, are in principle not jointly and severally liable
- Several rules of procedure favour the bringing of an appeal and the consensual dispute
- The compensation procedure will be suspended for a duration of maximum 2 years in case of
a consensual dispute resolution.
- The application of rules determining when the limitation period begins to run,
effectively allowing the initiating of claims for compensation for infringements of
The limitation period begins to run as from the day following the day when the infringement
of competition law has ceased and when the claimant knows, or can reasonably be expected to
know, the behaviour constituting the infringement of competition law, the fact that the
infringement of competition law caused the claimant harm, and the identity of the
- The limitation period will be suspended for the duration of a whole consensual dispute
3. Consumers’ associations
The new rules also facilitate consumers’ associations to bring a class action for compensating
the consumers suffering harm by an anti-competitive behaviour.
The scope of the class action is explicitely expanded to the infringements of competition law
covered by the new provisions of the Economic Law Code.
The introduction of these new rules in the Economic Law Code will allow favouring the actions
for compensation by the persons and companies injured by an anti-competitive behaviour.
The consumer will have the choice to bring an action for damages himself or in the framework of a
On the other hand, any harmed company will be able to bring an action supposing that it has not
passed on the overcharges on its own clients.
It will be interesting to follow the practical application of those new rules further to the next
decision of the Belgian Competition Authority.
We will keep you informed of this matter.
Would you like to learn more about this subject?
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