Belgium has a sophisticated collective action regime.

What is the most common type of collective action you are seeing?

In the transport sector (aviation, train and automotive) and in the area of investors’ litigation.

What are the various ways a group could bring a collective action?

By participating in an action for collective redress filed by a qualified entity on behalf of the group (only for consumers and SMEs).

A legal person my be recognised as a "qualified entity": 

• by the competent minister in Belgium;
• on an ad hoc basis by the enterprise court of Brussels or the court of appeal, provided that it fulfils the conditions laid down in the law (see below); or
• by another Member State.

The legal person must fulfil the following conditions:

1. Provide proof of actual public activity in the protection of consumer interests during at least 12 months;
2. Have a statutory purpose, the protection of consumer interests;
3. Be non-profit making;
4. Be solvent;
5. Have procedures in place to avoid any conflicts of interest with other interested parties; and
6. Make information publicly available that demonstrates that the entity meets these criteria and discloses it sources of its funding in general, its organizational, governance and membership structure, its statutory purpose and its activities. 

By jointly bringing an action before court or requesting the court during proceedings to join (connected) individuals actions, or by giving a power of attorney to a qualified entity  who will defend the group's interests before the court. 

If collective actions are permitted, are these opt-in or opt-out actions?

There is both opt-in and opt-out systems. It depends on which type of action is brought.

The opt-in mechanism applies in any event where:

• consumers are not domiciled in Belgium;
• SMEs do not have their main establishment in Belgium; and
• a collective action for physical injury or moral damages has been brought.

Consumers or SMEs are entitled to wait before joining in the procedure until after (i) either a settlement has been reached between the defendant and the group representative or (ii) a decision has been made on the defendant’s liability to indemnify the group (in which case the law imposes a mandatory opt-in mechanism).

Does the law currently provide for private collective actions by consumers?

Actions can be brought jointly by a group of consumers or under the umbrella of a qualified entity.

If collective actions are permitted are the usual forms of relief permitted and can punitive damages be claimed?

Plaintiffs in joined actions can obtain all kinds of relief. In actions for collective redress, the group of consumers/SMEs can claim compensation in kind or monetary damages.

Punitive damages are not allowed.

Are bodies which represent consumers able to bring actions on their behalf? And if yes, can these bodies bring cross-border actions?

Yes, the qualified entities must fit within defined criteria. Cross-border actions can be brought as long as the Belgium courts have jurisdiction. 

Is third party funding of litigation permitted?

But it is not a well-developed market.

Is litigation funding permitted for collective actions?

There are no specific laws preventing it. 

Are consumer groups and law firms allowed to advertise the collective actions they are running?

Yes

Is there a formal mechanism to settle actions on a collective basis?

The settlement of joined actions brought by a group of plaintiffs does not need court approval but actions brought within the collective redress framework do require court approval. Plaintiffs can choose not to be bound by the settlement but those who are within a collective redress framework will be bound. 

If a trader loses a collective action does the law require the trader to publicise this? 

Actions within the collective redress framework will be publicised on official government websites. 

Is there a penalty for non-compliance with a final decision issued in respect of a collective action?

The Collective Redress Directive must be implemented in all EU member states by 25 December 2022. To find out more about the current progress of implementation of the Directive in this jurisdiction click here.