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6 JUIN 2017. - An Act to insert a Title 3 "The action in damages for the offences of competition law" in Book XVII of the Economic Law Code, incorporating the definitions specific to Book XVII, Title 3 in Book I^er amendments to the Economic Law Code (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
CHAPTER 1^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. This Act transposes Directive 2014/104/EU of the European Parliament and Council of 26 November 2014 on certain rules governing actions in damages in national law for offences under the competition law of the Member States and the European Union.
CHAPTER 2. - Amendments to the Economic Law Code
Art. 3. In Book I^er, Title 2, Chapter 13, of the Economic Law Code, inserted by the Act of 28 March 2014, an article I.22 is inserted as follows:
"Art. I.22. The following definitions are applicable to Book XVII, Title 3:
1° "Competition Law Offence": an offence under Article 101 or Article 102 of the Treaty on the Functioning of the European Union (hereinafter "TFEU") and/or Article IV.1 or Article IV.2;
2° "author of the offence": the company or association of companies that has committed an offence to competition law;
3° "action in damages": an action brought under section XVII.72 and by which a court is seized of a claim for damages by a party that considers itself to be injured, by a person acting on behalf of one or more parties that feel aggrieved, or by a natural or legal person who has succeeded in the rights of the party that considers itself injured, including the person who has claimed damages
4° "claim for damages": an application for compensation for damage caused by a breach of competition law;
5° "injured party": a person who suffered damage caused by an offence of competition law;
6° "National competition authority": the Belgian Competition Authority or another competent authority to apply Articles 101 and 102 of the TFEU, designated by a Member State under Article 35 of Regulation (EC) No. 1/2003 of the Council of 16 December 2002 concerning the implementation of the competition rules provided for in Articles 101 and 102 of the TFEU;
7° "competitive authority": the European Commission or a national competition authority, or both, depending on the context;
8° "national jurisdiction": any jurisdiction of a Member State within the meaning of Article 267 of the TFEU;
9° "judgment of appeal": the Court of First Instance of the European Union ("TPIUE") adjudicating an appeal against a decision of the European Commission on a procedure for the application of Article 101 and/or 102 of the TFEU, or, where applicable, the Court of Justice adjudicating against the judgment of the ICTR in accordance with Article 256 of the TFEU, or a competent national jurisdiction
10° "decision finding an offence": a decision concluding the existence of an offence under competition law, pronounced by a competition authority or by a court of appeal;
11° "final decision finding an offence": a decision recognizing the existence of an offence under competition law that cannot or can no longer be appealed by ordinary channels;
12° "cartel": any agreement and/or any concerted practice between two or more companies and/or associations of competing companies - and, where applicable, with one or more other companies and/or associations of non-competitive enterprises - aiming to coordinate their competitive behaviour on the market or to influence the parameters of competition by practices including, but not limited to, the setting or co-ordinating of purchase or selling prices or other
13° " leniency program": a program relating to the application of Article 101 of the TFEU and/or Article IV.1 of the Economic Law Code, on the basis of which a participant in a secret cartel, regardless of the other companies participating in the cartel, cooperates with the competition authority in the course of his investigation by spontaneously presenting elements concerning his knowledge of the cartel and the role that he plays in it, in exchange for what purpose
14° "declaration made to obtain leniency": any oral or written statement, or any transcript of such a presentation, spontaneously presented to the competition authority by a company or natural person, or in their name, which describes the knowledge that this company or that natural person of a cartel has, and describes their role in this cartel, whose presentation has been expressly established to be subject to partial competition authority Pre-existing information is excluded, i.e., evidence that exists independently of the proceedings initiated by a competition authority, whether or not it is included in a competition authority file;
15° "beneficiary of total exemption of fines": a company or an association of companies to which a total exemption of fines was granted by a competition authority as part of a leniency program;
16° "proposal of transaction": the voluntary presentation by a company, or on its behalf, to a competition authority of a declaration recognizing the participation of that company in a competition law offence and its responsibility in that competition law offence, or waiving the challenge of such participation and the liability arising therefrom, specifically established to allow a competition authority to apply a simplified or accelerated procedure;
17° "surcost": the difference between the price actually paid and the price that would have been applied in the absence of a competition law offence;
18° "Amic resolution of disputes": any process allowing the parties to arrive at an extrajudicial settlement of a dispute relating to a claim of damages, such as mediation, extrajudicial conciliation or arbitration;
19° "Amicable resolution": an agreement obtained through a friendly dispute resolution procedure and an arbitral award;
20° "Direct Buyer": a natural or legal person who has purchased directly from the perpetrator of the offence of products that have been the subject of a competition law offence;
21° "Indirect buyer": a natural or legal person who has purchased, not directly from the perpetrator of the offence, but from a direct buyer or a subsequent buyer, products that have been the subject of a competition law offence, or products containing or derived from the latter. ".
Art. 4. In section IV.34 of the same Code, inserted by the Act of 3 April 2013, paragraph 1^er is supplemented by the words "or to produce evidence in accordance with the provisions of Book XVII, Title 3, Chapter 3.".
Art. 5. In article IV.45, § 2, of the same Code, inserted by the law of 3 April 2013, paragraph 2 is supplemented by the words ", without prejudice to articles XVII.77, XVII.78 and XVII.79".
Art. 6. In article IV.46 of the same Code, inserted by the Act of 3 April 2013, paragraph 3 is supplemented by the words "and articles XVII.77, XVII.78 and XVII.79.".
Art. 7. In article IV.70 of the same Code, inserted by the Act of 3 April 2013, paragraph 1^er is supplemented by a third paragraph, as follows:
"The Belgian Autorité de la concurrence may consider compensation for damage caused by an infringement of the law of competition that was granted following amicable resolution, as a mitigating circumstance, before it has adopted its decision to impose a fine. ".
Art. 8. In the same Code, Article IV.77, inserted by the Act of 3 April 2013, the current text of which will form paragraph 1^er, is supplemented by paragraph 2 as follows:
"§2. As part of a procedure for damages, the Belgian Autorité de la concurrence may, at the request of a national court, assist the said jurisdiction with respect to the quantification of the amount of damages when it considers that such assistance is appropriate, under the conditions and terms set out in paragraph 1^er".
Art. 9. Article XVII.37 of the same Code, inserted by the law of 28 March 2014 and amended by the law of 26 October 2015, is supplemented by a 33° written as follows:
"33° Article 101 and/or Article 102 of the TFEU.".
Art. 10. In Book XVII, Title 2, Chapter 3, Section 2, of the same Code, inserted by the law of March 28, 2014, an article XVII.70 is inserted as follows:
"Art. XVII.70. Without prejudice to the provisions of this title, the provisions of Book XVII, Title 3, shall apply to actions in collective compensation for the offences of competition law introduced by this Title, except in sections XVII.83 and XVII.89. ".
Art. 11. In Book XVII of the same Code, it is inserted a Title 3 entitled:
"Title 3. Damage and interest action for competition law offences."
Art. 12. In Title 3, inserted by Article 11, it is inserted a Chapter 1^er title:
"Chapter 1^er. Field of application".
Art. 13. In Chapter 1^er, inserted by article 12, it is inserted an article XVII.71, as follows:
"Art. XVII.71. § 1^er. This title applies to damages for competition law offences.
§ 2. This title sets out rules that apply without prejudice to the common law applicable to damages. In the case of conflict with common law, the rules set out in the provisions of this Act shall prevail.".
Art. 14. In the same Title 3, a Chapter 2 entitled:
"Chapter 2. Right to complete reparation".
Art. 15. In Chapter 2, inserted by Article 14, an article XVII.72 is inserted, as follows:
"Art. XVII.72. Any natural or legal person who has suffered damage caused by a competition law offence has the right to seek and obtain full compensation for the damage in accordance with the common law."
Art. 16. In the same Chapter 2, an article XVII.73 is inserted, as follows:
"Art. XVII.73. The offence committed under a cartel is presumed to cause injury. The perpetrator of the offence has the right to overthrow this presumption.".
Art. 17. In the same Title 3, a Chapter 3 entitled:
"Chapter 3. Evidence."
Art. 18. In Chapter 3, inserted by Article 17, it is inserted a Section 1^reentitled:
"Section 1^re. Production of evidence."
Art. 19. Section 1^re, inserted by section 18, it is inserted a sub-section 1 entitled:
"Subsection 1^re. General principles."
Art. 20. In the same Sub-section 1st, inserted by section 19, an article XVII.74 is inserted, as follows:
"Art. XVII.74. § 1^er. At the request of each of the parties to the dispute that submitted a reasoned justification containing factual data and reasonably available evidence sufficient to support the plausibility of his application, the judge may order another party or a third party to produce certain relevant evidence or relevant categories of evidence in his possession. These should be circumscribed as precisely and narrowly as possible.
§ 2. The judge limits the production of evidence to what is proportionate. As such, the judge shall take into account the legitimate interests of all parties and third parties concerned. In particular, it considers:
1° the extent to which the request for the production of evidence is supported by factual data and available evidence justifying it;
2° the extent and cost of the production of evidence, in particular for any third parties involved, including in order to avoid any non-specific search for information that is unlikely to be relevant to the parties to the proceedings;
3° the possibility that the evidence for which the production is requested contains confidential information, in particular regarding possible third parties, and the existing measures for the protection of such confidential information, in accordance with Article XVII.75. ".
Art. 21. In the same subsection 1^re, an article XVII.75 is inserted, as follows:
"Art. XVII.75. The judge may order the production of evidence containing confidential information when he considers it relevant to the damages action.
When the judge orders the production of such information, it takes effective measures to protect such confidential information. These measures may include the possibility of occupancy of sensitive passages by requesting the production of non-confidential versions to the holders of evidence, requesting summaries of the information made by experts in a comprehensive or non-confidential form, conducting closed hearings or limiting the circle of persons authorized to become aware of the evidence. ".
Art. 22. In the same Sub-section 1st, an article XVII.76 is inserted, as follows:
"Art. XVII.76. Prerequisitely to the injunction of the production of evidence pursuant to sections XVII.74 and XVII.75, the judge shall, in accordance with the terms and time fixed by the judge, invite the person concerned by an application for the production of evidence to file written submissions. It may also be heard if the judge authorizes it. "
Art. 23. In the same Section 1st, a Sub-section 2 entitled:
"Subsection 2. Production of evidence in the file of a competition authority."
Art. 24. In subsection 2, inserted by section 23, an article XVII.77 is inserted, as follows:
"Art. XVII.77. § 1^er. The provisions of this subsection apply without prejudice to articles XVII.74 to XVII.76 and the rules and practices provided for in European Union law, Book IV or the competition law of other Member States with regard to the protection of the internal documents of the competition authorities and the correspondence between them.
§ 2. The judge may order the production by the competition authority of evidence contained in his file only where any of the parties or third parties may reasonably provide such evidence. ".
Art. 25. In the same Sub-Section 2, an article XVII.78 is inserted, as follows:
"Art. XVII.78. § 1^er. When the judge assesses, in accordance with Article XVII.74, § 2, the proportionality of an injunction of the production of evidence in the file of a competition authority, the judge also takes into account the following:
1° if the request for the production of evidence has been made in a specific manner as to the nature, object or content of the documents submitted to a competition authority or held in the record of the competition authority;
2° if the party requesting the production of evidence does so in the context of a damages action and
3° for Article XVII.77, § 2, and XVII.79, § 1^er, or at the request of a competition authority pursuant to paragraph 2 of this article, the need to preserve the effectiveness of the enforcement of competition law by a competition authority or an appeal body.
§ 2. The judge shall, in accordance with the terms and time limit set out by the judge, invite the competition authority concerned by an application for the production of evidence to file written comments on the proportionality of the claim. It may also be heard if the judge authorizes it.".
Art. 26. In the same Sub-Section 2, an article XVII.79 is inserted, as follows:
"Art. XVII. 79. § 1^er. The judge may order the production of evidence under the following categories only when the competition authority has, by adopting a decision or otherwise, terminated its procedure:
1° information prepared by a natural or legal person expressly for the purposes of a procedure initiated by the competition authority;
2° the information prepared by the competition authority and sent to the parties during its procedure and
3° the transaction proposals that were withdrawn.
§ 2. The judge may not at any time order a party or a third party to produce evidence under the following categories:
1° the statements made to obtain leniency and
2° the transaction proposals.
§ 3. The judge may, on the presentation of a reasoned application by the applicant, access the evidence referred to in paragraph 2, for the sole purpose of ensuring that their content corresponds to the definitions given in I.22, 14° and 16°.
In its assessment referred to in paragraph 1^er, the judge shall, in accordance with the terms and time set by the judge, invite the author of the evidence in question to file written submissions. It may also be heard if the judge authorizes it.
The judge may also request the assistance of the competent competition authority, in accordance with the terms and time limit that it sets.
In no case may the judge authorize access to such evidence to other parties or to third parties.
§ 4. Where only parts of the evidence requested are covered by paragraph 2, the other parts of the evidence shall be produced, depending on the category under which they fall, in accordance with Articles XVII.77, XVII.78 and this section.
§ 5. The judge may order, at any time, the production of evidence from the competition authority's file, which does not fall under any of the categories listed in subsections 1^er and 2. "
Art. 27. In the same Sub-Section 2, an article XVII.80 is inserted, as follows:
"Art. XVII.80. § 1^er. Evidence from the categories referred to in Article XVII.79, § 2, obtained by a natural or legal person only through access to the file of a competition authority, cannot be paid to the procedural file. However, if the evidence is paid they are not admissible and are deviated from the proceedings.
§ 2. Until a competition authority has terminated its proceedings by adopting a decision or otherwise, evidence falling within the categories listed in Article XVII.79, § 1^er, which are obtained by a natural or legal person only through access to the file of a competition authority, cannot be paid to the procedural file. However, if the evidence is paid they are not admissible and are deviated from the proceedings.
§ 3. Evidence obtained by a natural or legal person only through access to the file of a competition authority and not covered by subsection 1^er or 2, may only be used in a damages action by that person or by a natural or legal person who has succeeded in the rights of that person, including the person who has redeemed the claim. ".
Art. 28. Section 1^re, it is inserted a sub-section 3 entitled "Sanctions".
Art. 29. In subsection 3, inserted by section 28, an article XVII.81 is inserted as follows:
"Art. XVII.81. Without prejudice to article 1385bis of the Judicial Code, the judge may impose a fine on the parties, third parties or their legal representatives of 1,000 to 10,000 euros, without prejudice to the damages claimed, in the following cases:
1° failure to comply with an injunction of evidence from the judge or refusal to comply with it;
2° the destruction of relevant evidence;
3° the failure to comply with the obligations imposed by a court order protecting confidential information, or the refusal to comply with it;
4° the violation of the restrictions in this chapter for the use of evidence.
The fine must be effective, proportionate and deterrent in the light of the company or the person to whom it is inflicted and the concrete circumstances of the case, such as the amount of the claim for damages, the decisive nature of the evidence ordered by the judge, its probative value, the gravity of the procedural offence and the intention or intention of committing the offence in the head of a third party
The recovery of the fine is pursued by all means of the right to due diligence of the administration of the Recording and Domains.
Where any of the cases referred to in paragraph 1^er is attributable to the conduct of a party, the judge may, in addition, draw any adverse consequences that he deems appropriate, such as presuming that the contentious fact in question is proven or reject, in whole or in part, the requests and means of defence. He can also pronounce a sentence at the expense.".
Art. 30. In the same Chapter 3, a Section 2 entitled:
"Section 2. Effects of national decisions finding a violation of competition law".
Art. 31. In Section 2, inserted by Article 30, an article XVII.82 is inserted, as follows:
"Art. XVII.82. § 1^er. An infringement of the competition law found in the context of a final decision of the Belgian Autorité de la concurrence or, where applicable, in the context of a decision of the Court of Appeal of Brussels passed in force of thing tried and ruling on an appeal against a decision of the Belgian Autorité de la concurrence pursuant to article IV.79, is deemed to be established in an irrefragable manner for the purposes of a damages action for an offence to competition.
§ 2. A final decision finding a violation of competition law in another Member State of the European Union by a national competition authority or its board of appeal is accepted at least as a beginning of evidence that an offence to competition law has been committed and can be examined with other evidence provided by the parties. ".
Art. 32. In the same Chapter 3, a Section 3 entitled:
"Section 3. Repercussion of the overcost."
Art. 33. In Section 3, inserted by section 32, an article XVII.83 is inserted, as follows:
"Art. XVII.83. The defendant in a damages action may invoke, as a defence against a claim for damages, the fact that the applicant has, in whole or in part, impacted the overcost resulting from the infringement of competition law. The burden of proof of overcharge is on the respondent, who may reasonably request the production of evidence by the applicant and/or by third parties in accordance with the sections of this chapter.
The first paragraph is without prejudice to the right of the injured party to seek and obtain compensation for the loss of profits due to the partial or total impact of the overcost. ".
Art. 34. In the same Section 3, an article XVII is inserted. 84, as follows:
"Art. XVII.84. When the existence of a claim for damages or the amount of compensation depends on the impact of the overcost or its magnitude, the applicant is responsible for proving the existence and extent of this overcost repercussion. For this purpose, it may reasonably request the production of evidence by the defendant or by third parties in accordance with the articles of this chapter.
However, where the applicant is an indirect buyer, the applicant is deemed to have provided evidence of a repercussion against the applicant when he has shown that:
1° the defendant has committed an offence to competition law;
2° the infringement of competition law resulted in an overcost for the direct buyer of the defendant and
3° the indirect purchaser has bought the goods or services concerned by the infringement of competition law, or has purchased goods or services derived from or containing them.
Paragraph 2 is, however, not an application if the judge considers that the respondent has crediblely demonstrated that the incremental costs have not been partially or totally impacted on the indirect buyer."
Art. 35. In the same Section 3, an article XVII.85 is inserted, as follows:
"Art. XVII.85. In order to prevent damages brought by claimants at different levels of the distribution chain from giving rise to a multiple liability or to a lack of liability of the offender, where the judge in receipt of a damages action assesses whether it has been satisfied with the burden of proof resulting from the application of sections XVII.83, paragraph 1^er, and XVII.84, it may, using the means available in European Union law or in Belgian law, take due account of any of the following:
(a) damages against the same violation of competition law, but brought by claimants at other levels of the distribution chain;
(b) the court decisions taken as a result of damages actions referred to in (a);
(c) relevant information relevant to the public domain arising from the implementation of competition law by a competition authority or an appeal body. ".
Art. 36. In the same Title 3, a Chapter 4 entitled:
"Chapter 4. Solidarity responsibility".
Art. 37. In Chapter 4, inserted by Article 36, an article XVII.86 is inserted, as follows:
"Art. XVII.86. § 1^er. Companies and/or associations of companies that have committed a breach of competition law by joint behaviour are jointly responsible for the damage caused by the offence.
§ 2. Derogation from paragraph 1^er, where the perpetrator of the offence is a small or medium-sized company (hereinafter "P.M.E.") within the meaning of recommendation 2003/361/EC of the European Commission of 6 May 2003 concerning the definition of micros, small and medium-sized enterprises, he is in solidarity with the damage only:
1° in respect of direct or indirect buyers or suppliers
2° in respect of other aggrieved parties only where full compensation cannot be obtained from other companies involved in the same competition law offence.
In order to benefit from the exemption under paragraph 1^erP.M.E. shall meet the following conditions:
1° its market share in the market concerned must be less than 5% at any time of the duration of the competition law offence and
2° the application of the rules of solidarity liability would irreparably undermine the economic viability of the company concerned and would lose all value to its assets.
However, the exemption under paragraph 1^er does not apply where:
1° P.M.E. was instigator of the infringement of competition law or forced other companies to participate in it or
2° P.M.E. was previously convicted of a competition law offence.
§ 3. Derogation from paragraph 1^er, the beneficiary of a total exemption of fines is jointly and severally responsible for the damage that:
1° in respect of direct or indirect buyers or suppliers
2° in respect of other aggrieved parties only where full compensation cannot be obtained from other companies involved in the same competition law offence. ".
Art. 38. In the same Chapter 4, an article XVII.87 is inserted, as follows:
"Art. XVII.87. § 1^er. The perpetrator of the offence who has paid all or part of the amount of the repair, may recover from any other perpetrator of the offence a contribution of which the amount corresponds to the relative responsibility of each of them in the damage caused by the offence.
§ 2. Derogation from paragraph 1^er, the amount of an offender's contribution to an offence that is a beneficiary of a total exemption from fines does not exceed the amount of damage that this offence has caused to its own direct or indirect buyers or suppliers.
To the extent that the infringement of competition law has caused injury to injured parties other than direct or indirect buyers or suppliers of the perpetrators of the offence, the amount of an offender's contribution that is the beneficiary of a total exemption of fines does not exceed the amount corresponding to its relative liability in the damage caused by the offence. ".
Art. 39. In the same Chapter 4, an article XVII.88 is inserted, as follows:
"Art. XVII.88. § 1^er. When the injured party has concluded amicable resolution with a perpetrator of the offence, the amount of the claim for damages of the injured party who participated in the resolution is diminished by the damage caused to the injured party by the infringement of the competition law that is attributable to the perpetrator of the offence party to that resolution.
Any reliance on the request of the injured party who participated in the amicable resolution can only be claimed against the perpetrators of the offence that are not parties to that resolution. The perpetrators of the offence that are not parties to this resolution may not require the perpetrator of the offence to make a contribution to the relic of the application.
§ 2. Derogation from paragraph 1^erParagraph 1^er, the aggrieved party who has participated in amicable resolution may claim the remainder of its application to the perpetrator of the offence party to that resolution when the perpetrators of the offence that have not participated in the resolution cannot pay the damages and interests associated with this reliquest.
The derogation referred to in paragraph 1^er may be expressly excluded by the terms of amicable resolution.
§ 3. In order to determine the amount of the contribution that a perpetrator of the offence may recover from any other author on the basis of their relative liability for the damage caused by the infringement of competition law, the judge shall take into account all damages paid in the context of an earlier amicable resolution involving the perpetrator concerned. ".
Art. 40. In the same Title 3, a Chapter 5 entitled:
"Chapter 5. Suspicious effect of amicable resolution of disputes".
Art. 41. In Chapter 5, inserted by Article 40, an article XVII.89 is inserted as follows:
"Art. XVII.89. Without prejudice to article 1682 of the Judicial Code, a judge who has taken action in damages may suspend proceedings for a period of time, not prorogable, up to two years when the parties to the Court participate in amicable resolution of disputes concerning the claim covered by the action in damages. ".
Art. 42. In the same Title 3, a Chapter 6 entitled:
"Chapter 6. Prescription".
Art. 43. In Chapter 6, inserted by Article 42, an article XVII.90 is inserted, as follows:
"Art. XVII.90. § 1^er. The limitation periods of common law to bring an action for damages for competition law offences begin to run from the day after the day on which the infringement of competition law ceased and where the plaintiff knew or should reasonably have known:
1° of behaviour and the fact that such behaviour constitutes an offence to competition law;
2° because the violation of competition law caused him damage and
3° of the identity of the perpetrator of the offence.
For continuous or repeated offences, it is considered that the offence ceased on the day the last offence ended.
§ 2. The limitation periods referred to in paragraph 1^er shall be interrupted by any act of a competition authority aimed at the investigation or prosecution of an offence of competition law to which the damages action relates. This interruption ends on the day following the day on which the finding of an offence has become final or has been terminated in another way. ".
Art. 44. In the same Chapter 6, an article XVII.91 is inserted, as follows:
"Art. XVII.91. Amicable resolution of disputes, with the exception of arbitration, suspends the limitation periods established to introduce damages action during the proceedings of this friendly resolution of disputes. This suspension applies only to parties who participate or have participated in or have been represented in the proceedings. ".
CHAPTER 3. - Transient provision
Art. 45. By derogation from Article 3 of the Judiciary Code, the procedural rules set out in this Act do not apply to damages proceedings before a court before December 26, 2014.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 6 June 2017.
PHILIPPE
By the King:
Minister of Economy and Consumers,
K. PEETERS
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
House of Representatives:
(www.lachambre.be)
Documents: 54-2413 (2016/2017)
Full report: 18 May 2017.