BELGIUM Law and Practice Contributed by: Benjamin Docquir and Margo Cornette, Osborne Clarke
access unless they prove no fault on their part. The CJEU clarified that such incidents alone do not imply inadequate security measures by the controller, who must prove the measures’ appro - priateness. 2.3 Collective Redress Mechanisms On 31 May 2024, the Law of 21 April 2024, which amends Books I, XV and XVII of the Belgian CEL and transposes Directive (EU) 2020/1828 on representative actions to protect the collective interests of consumers (RAD), was published in the Belgian Official Journal . The new Belgian law does not introduce a com - pletely new legal system to allow so-called class actions, as collective redress actions have been available in Belgium for consumers since 2014 and for SMEs since 2018. Nevertheless, the following changes are notable. • A generalised opt-in regime: Consumers only need to decide whether to opt in after a deci - sion on the merits is issued, but there is the possibility to enter into collective settlements on an opt-out basis. Previously, the Belgian CEL allowed the judge to choose which opt- in/opt-out system would apply to a particular collective redress action. However, this is not common practice in other jurisdictions, where the legislator typically determines the applica - ble system. The new law introduces changes in this respect: the mechanism has been revised for the negotiation phase. To reach an agreement, it is necessary to leave as much room for negotiation as possible. Therefore, the parties themselves can decide whether the group will be formed according to an opt- out or an opt-in approach. If no agreement is reached at the end of the negotiation phase, the substantive procedure (“on the merits”)
will start. The composition of the group will then be based on an opt-in system. This opt- in phase has been moved to a different stage in the procedure, namely after the decision on liability, which results in an obligation for the defendant to pay compensation. • Limited rules on litigation funding: To ensure the independence of the qualified entity, third- party funding will be subject to necessary supervision. One of the conditions for recog - nition is that the group representative must be independent and not financially influenced by its funders. If this is not the case, the minis - ter may refuse recognition, or the court may declare the collective redress action inadmis - sible. Furthermore, there is a transparency requirement to state in the request that the collective redress action is funded by a third party, and an obligation on the representative to identify the funding third parties as well as the amounts funded. • Group representatives: Besides recognised entities, it is now possible to set up an ad hoc entity specifically for introducing collective redress proceedings. • Definition of qualified entities: Qualified enti - ties that are allowed to bring representative actions now benefit from a clear and precise definition. This definition includes entities recognised in another member state. Addi - tionally, the text expressly addresses the question of ad hoc entities and allows them to start actions. A complete list of qualified entities will be published on the website of the Federal Public Service Economy. Pending representative actions must be published by the qualified entities. • Cross-border actions: The law permits cross- border collective redress actions, enabling foreign qualified entities to initiate collective redress proceedings in Belgium and allow -
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