The Transposition of the Antitrust Damages Directive in Belgium

Abstract

The Antitrust Damages Directive was transposed in Belgian law by Act of 6 June 2017 inserting a Title 3 “The action for damages for infringements of competition law” in Book XVII of the Code of economic law, inserting definitions specific to Book XVII, Title 3 in Book I and modifying several provisions of the Code of Economic law.

The implementation of the Directive significantly facilitates access to documents in particular where documents in the file of the competition authority. Also the presumption that cartels cause damage will facilitate the position of claimants. It is noteworthy that the Belgian definition of a cartel is wider than that included in the Directive.

Even more remarkable is the fact that the Belgian legislator, when implementing the exception to the solidary liability for small and medium sized enterprises does not limit their liability to that towards their own direct and indirect purchasers as provided by Article 11(2) of the Directive, but he also holds them liable towards other injured parties where full compensation cannot be obtained from the other undertakings that were involved in the same infringement of competition law, similar to the rules of the Directive concerning immunity recipients. It is not entirely clear whether the Directive allows for such an extension of the liability of SMEs.

Finally, difficulties are expected to result from the use of the concept of the undertaking when indicating the infringer of the competition rules and seemingly the entity liability for damage caused thereby.

Keywords: Cartel damages, private enforcement of competition law, antitrust damages directive, Belgian law