On 17 March 2016, the Belgian Constitutional Court partially annulled Article XVII.39 of the Code of Economic Law (Wetboek van Economisch Recht/Code de droit économique – the "CEL") (Constitutional Court, judgment 41/2016 of 17 March 2016). Article XVII.39 CEL contains a closed list of entities that can act as so-called group representatives for consumer-to-business class actions in Belgium. Class actions were introduced in Belgian law in 2014 (See, VBB on Business Law, Volume 2014, No. 9, p. 10, available at www.vbb.com).
Pursuant to Article XVII.36, 2° CEL, class actions are only admissible if they are introduced by a group representative meeting the requirements of Article XVII.39 CEL. The list of admitted group representatives in Article XVII.39 CEL includes consumer rights associations with legal personality which: (i) are represented in the Consumption Council (Raad voor het Verbruik/Conseil de la Consommation); or (ii) have obtained a prior ministerial recognition. In actual fact, only one association, Test Aankoop/Test Achats, is permitted to act as a representative in a class action.
The Constitutional Court held that the prior recognition requirement violates Directive 2006/123/EC on services in the internal market (the "Services Directive") in so far as it prevents specific consumer rights associations from other EU Member States, which did not obtain the required ministerial recognition, from acting as a group representative for class actions before the Belgian courts. According to the Constitutional Court, this violation of the Services Directive amounts to an unjustifiable discrimination of consumer rights associations established in other EU Member States. It therefore partially annulled Article XVII.39 CEL.
In view of this partial annulment, the Belgian legislator is now required to amend Article XVII.39 CEL so as to allow for consumer rights associations established in other EU Member States to act as group representatives in Belgian class action proceedings.
The applicants before the Constitutional Court had also brought claims for the annulment of: (i) the transitional provision that excludes the application of the class action regime to damage resulting from facts that precede the entry into force of the class action legislation on 1 September 2014; (ii) the provision containing a limited list of legal grounds on which class actions can be based; and (iii) the provisions requiring victims of mass damages to opt in already at the admissibility stage of the proceedings. However, the Constitutional Court dismissed these claims as unfounded. The Constitutional Court also confirmed that lawyers are not permitted to act as a representative for a class, but that a qualifying association can appoint a lawyer to represent it in court.
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