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Does the Coronavirus also cause a flare-up of class actions in Belgium?

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It is generally accepted that the Corona pandemic is a global force majeure situation in which, in principle, no one can be held responsible for any damage caused by the Coronavirus. But what about ski resorts which, despite the fact that the government knew or should have known that the Coronavirus was present in the resort, still remained open and accessible? What about cruise ships that, although the Coronavirus was clearly present on board, continued their journey and left their passengers in the dark? What about travel agencies that continued to allow travel despite alarming information about an increase of Covid-19 patients at the travel destination? And what about the Belgian government which, according to some, was guilty of a number of shortcomings, for instance intervening too late to control the Coronavirus and possibly making wrong decisions regarding the orders for mouth masks or the measures regarding rest homes? These are situations in which one could consider filing a class action. 

The conditions for filing a class action depend on the national regulations of a country. This e-zine provides a brief overview of the (strict) conditions for setting up a class action in Belgium.

What is a class action?

A 'class action' or an 'action for collective redress' is a legal action brought by a group of consumers or SMEs, each of which has suffered damage in their personal capacity as a result of a common cause. In particular, it is a "collective claim", usually brought with a view to obtaining compensation, in the name and on behalf of a large number of consumers or SMEs, all of whom are victims of a wrongful act by the same responsible entity. 

For what and by whom can a class action be filed and at which court should it be brought?

A class action always relates to a complaint by a group of consumers or SMEs against a company (or an autonomous public undertaking) because of a breach of one of its contractual obligations, or because of a breach of specific legislation, such as economic legislation (e.g. protection of competition, market practices and consumer protection) or travel legislation. Victims can obtain compensation for material, moral and/or physical damage through this collective claim. 

A class action is brought by means of a request to be filed at the Commercial Court in Brussels. A request must always be filed by a recognised group representative. In practice, only the organisation "Test Aankoop" has initiated a limited number of class actions in the past, as a result of which it currently has a de facto monopoly with regard to filing class actions in Belgium. It will therefore be "Test Aankoop" that will appoint a possible lawyer for the entire class.

How does a class action proceed?

As soon as a collective claim, brought by a recognised group representative, is declared admissible by the judge, the judge will set a decision-making time limit for the victims and will determine the exact procedure to be followed. This declaration of admissibility must be clearly distinguished from the US "certification of a class" decisions and is generally easier to obtain from a Belgian judge. A class action can then take place through negotiation or through legal proceedings. 

If a class action is filed in Belgium in the light of the Coronavirus, this will most likely be done via the "opt-in" system. This means that every injured party must actively join the class action. After all, each victim will have to demonstrate exactly, in concrete terms, what damage they have suffered. 

Moreover, in Belgium, it will not immediately be possible, for example, to bring a class action against the Belgian authorities, since our national legislation only applies to companies. The entire group of victims will therefore have to take individual (legal) actions, and each victim will not only have to prove their individual damage, but will also have to prove a fault due to the Belgian authorities, as well as a causal link, in order to prove the responsibility of the Belgian authorities. In addition, each victim will have to bear their own procedural costs - exactly what the introduction of a class action was intended to prevent. 

In Austria, there is no class action as such. The Consumers' Association of Austria has therefore opted for the criminal law route of bringing a class action in response to the Coronavirus. The public prosecutor will have to investigate whether there was a problem in Ischgl, amongst others, and what exactly went wrong there. Foreign tourists can join this group claim. Because of the rules of private international law, it will, for example, not be easy to start legal proceedings in Belgium against an Austrian municipality, but it may be advisable for a Belgian consumer to join the Austrian group claim.

Setting up a class action: a good idea?

A class action empowers the victims, who are represented in the same procedure and enjoy the same outcome. It can be seen as a good and efficient means of exerting pressure on a company in order to possibly obtain amicable compensation. Claims are brought before the judge that would otherwise never be brought, because an individual consumer might not find it worthwhile, for example, because of the limited value of the case.

Nevertheless, since the entry into force of the national legislation on 1 September 2014, only a handful of class actions have been brought by Test Aankoop in Belgium, amongst others against Facebook, Thomas Cook and Volkswagen. After all, bringing a class action can be burdensome and costly. There are often lengthy debates before a collective procedure is brought, purely and simply about the question whether the case is suitable to go to court. Demonstrating that a specific (non-)act or fault due to a company is the real cause of the damage suffered by the various consumers or SMEs is often difficult.

Moreover, in a number of cases there is also the possibility of "forum shopping": bringing proceedings before a jurisdiction that has more experience and expertise in dealing with class actions. For example, it is well known internationally that the Netherlands enjoys an excellent reputation with the Amsterdam Court of Appeal for the efficient handling of class actions (under the so-called Dutch Mass Claims Act). A class action can thus be a good way for a consumer or SME to make its voice heard, even if the individual commitment is relatively limited, but the entire collective procedure can sometimes be very burdensome. Our expectation is therefore that the Coronavirus will not cause an avalanche of class actions in Belgium and that plaintiffs will consider bringing this claim before a foreign court. As far as the defendants are concerned, the essential conditions of liability will still have to be proven by the group of plaintiffs and there will therefore be no reversal of the burden of proof in favour of the plaintiffs. This burden of proof often remains a major stumbling block in almost every Belgian liability dispute and usually requires the intervention of a court expert.

Apart from the impact of the now widespread Coronavirus (COVID-19) on our daily personal life, companies in Belgium and around the world also face important difficulties and challenges on all levels of their day-to-day business.

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