The directive aims to establish a level playing field throughout the EU. It includes provisions on: the disclosure of evidence; the proof of infringement; the passing-on of overcharges; liability; and the effect of national competition authority decisions.
The directive was implemented through the insertion of a new chapter into the Code of Economic Law. One of the main changes heralded by implementation is the introduction of a rebuttable presumption that cartels cause harm—something which simply did not previously exist in Belgian law, said Simmons & Simmons partner Koen Platteau.
“This proved to be a hurdle for claimants to establish the existence of damage, as evidenced by the judgments of the Brussels Commercial Court in the cartel damages claims of the Belgian state and the EU against members of an elevator cartel,” said Platteau.
The new law shifts the burden of proof of the absence of harm to the cartelists, which will need to show that their cartel did not cause harm to the claimants.
Notably, Platteau said, the definition of “cartel” included in the Belgian Code goes beyond what the directive requires.
“In the directive, a ‘cartel’ is defined as ‘an agreement or concerted practice between two or more competitors’, whereas the Code of Economic Law defines it as ‘an agreement or concerted practice between two or more competitors—and, if need be, one or more other non-competitors’.
“This broader concept is in line with the Belgian Leniency Notice, which uses this same broad definition of a cartel.”
The directive requires that a national competition authority’s final infringement decision constitutes full proof that the infringement occurred before the civil courts in the same EU member state; and at least prima facie evidence of the infringement before the courts of other EU member states.
Platteau added: “The binding force of the Belgian Competition Authority’s decisions before the Belgian courts has long been the subject of discussion. With the directive’s implementation, the binding effect of the authority’s decisions before the Belgian courts now has a legal basis.”
The Code of Economic Law now unequivocally allows the courts to order the disclosure of confidential information, provided measures are taken to protect the confidential nature.
“In this regard, a non-exhaustive list of possible measures (e.g., redacting confidential information, limiting the group of individuals that have access to the information or requesting the submission of non-confidential versions of documentation) provides guidance to the Belgian courts,” said Platteau.