Class actions, as we know them from the U.S. legal system, are usually defined as being claims made by large groups of people having a common interest in a claim. Class actions can enable a large number of parties to join the same claim without requiring each individual to become an identified party to the proceedings. Under Belgian law class actions are generally unavailable, because every interested party, as a matter of principle, needs to be involved in the proceedings individually.
The current system
According to Article 17 of the Belgian Code of Civil Procedure (“BCCP”), a claimant must, along with having authority and capability, demonstrate an interest in the litigation. Article 18 of the BCCP has been interpreted by case law and academics as providing that "interest" means a direct, personal and legitimate interest.
The requirement for a personal interest means that class actions are excluded under Belgian law because one claimant cannot file a claim on behalf of others (“nul ne plaide par procureur”). This principle also applies to corporate entities.
The Belgian Supreme Court in the “Eikendael judgment” (19 November 1982) ruled that, for corporate claimants, personal interest extends only to matters concerning the corporate entity's existence, material goods and moral rights (including its assets, honour and reputation). Corporate entities are not able to file a claim for the individual benefit of their members, as this does not constitute an interest which is considered personal to the entity – only the members themselves can file a claim. A corporate entity is also unable to seek damages in respect of all of its members (unless they are individually identified in the claim form) or in respect of the entity’s purpose, even though such purpose may be stipulated in its Articles of Association. A claim made by a corporate entity, will therefore only be possible if the entity itself is able to identify a specific interest, distinct from the interest of each of its members. The damages will then only be awarded to the corporate entity, and not to its members.
Importantly, this means that entities whose purpose is the defence and enhancement of a common interest (e.g. human rights, racism or environment), are prevented from bringing claims unless such claim relates not to their assets or rights, but to a common interest.
Under the current interpretation of the BCCP, class actions are possible where specific legislation sets out express exceptions (e.g. the Commercial Practices Act (14 July 1991), the Anti-Racism and Anti-Xenophobia Act (30 July 1981) or the Environmental Protection Act (12 January 1993)). Whilst such legislation exceptionally allows class actions, claimants still need to comply with rules set out in the legislation.
For example, the Environmental Protection Act provides that the legal entity filing the claim must be an authorised, non-profit-making organisation whose purpose is the protection of the environment and whose activity is limited in its Articles of Association. The organisation has to have held its legal status for at least three years at the time of filing the claim and be able to prove that its actual activity corresponds both to the purpose stated in the Articles of Association and the collective environmental interest it is trying to protect.
Inconsistent case law
Articles 17 and 18 of the BCCP are not applicable to claims brought before the “Council of State” or the “Constitutional Court” - as those Courts are more flexible in their approach. In the “Eikendael judgment”, the claim which had been found to be inadmissible before the Supreme Court (“Court of Cassation”), was heard by the Council of State (11 September 1981). The Council recognised the existence of a collective interest (based on the association’s statutory purpose and its actual activity), distinct from the individual interests of the members of the group. Relying on Article 20 of the Belgian Constitution (“the freedom of association principle”), the Council held that the purpose of this association could be construed as an "interest". In order to avoid abuse of this right, certain conditions are set out in the relevant case law.
A ‘first step’?
It is worth noting that nothing prevents parties from filing a claim as “co-claimants” and instructing the same lawyer to represent them in court. However, each claimant would need to give permission for the lawyer to act on their behalf, each would need to be identified in the writ of summons (article 702 of the BCCP) and the damages awarded would be limited to damages for the parties identified in the proceedings. This is distinct from the concept of a “class action”.
There is another way to circumvent one of the difficulties of filing a “class action” under Belgian law. Individuals have been allowed previously to file a claim together by appointing a corporate entity to represent them in the proceedings. The entity will then act on behalf of the individuals. The corporate entity will be named as the formal party in the proceedings, with a list of individual claimants to be submitted separately to the court.
This method ensures sufficient means to handle these kinds of complicated and often expensive proceedings are available to individuals. This in turn also allows the gathering of equally interested individuals over a certain period of time.
A recent example of the “Belgian-type class action” can be found in the Lernout & Hauspie (“L&H”) proceedings, in which the Société Anonyme Deminor was appointed by more than 13,000 former L&H shareholders to claim compensation for the damage suffered by the potentially fraudulent bankruptcy of the company. These shareholders had to subscribe with Deminor and pay a mandate fee. The first claim by Deminor was filed in February 2001, with the final list of individuals only submitted to the court in April 2007.
Nevertheless it is clear that Belgium is still far from having a real class action system, and this is emphasised by the fact that damages, even in this type of proceeding, will have to be proved for each separate individual.
Belgium has not played a leading role in the development of a “continental class action model”. The common system of one-on-one proceedings is firmly entrenched in the Belgian legal system and the L&H example demonstrates the urgent need for a proper system of collective litigation in Belgium.
Recently, however, new legislative measures have been suggested to introduce a consistent approach to “class actions”. A proposed amendment to Article 17 of the BCCP would, for instance, enable associations with a legal personality (corporate entities) to represent a collective interest (providing it is prescribed in their Articles of Association).Maybe Belgium isn't such a poor student after all.