Resolving Mass Disputes Belgian Report - University of Oxford Web viewabout financial services are...

Prof. dr. Stefaan VoetPhD Researcher Pieter Gillaerts

Institute for Civil Procedure

2016Resolving Mass Disputes Belgian Report

Source: http://www.analyticalsci.com/store/p109/The_Famous_Newton's_Cradle,_Large.html

Oxford-Leuven Collective Redress Project : BELGIUM REPORT

Table of contents

A. Mechanisms for resolving mass disputes..........................................................2

I. Compensation made by a criminal court........................................................2

II. Mass redress power public regulator or enforcer...........................................6

III. ADR, ombudsmen or compensation schemes................................................9

IV. Private enforcement mechanisms................................................................15

Annex I. Schematic representation of a number of important ADR entities.................24

B. Case studies.....................................................................................................35

B.1 Class actions................................................................................................35

1) Gellingen (Ghislenghien)..............................................................................35

2) Thomas Cook Airlines Belgium....................................................................37

3) NMBS...........................................................................................................39

4) Extortionate prices........................................................................................41

5) Volkswagen...................................................................................................42

B.2 Ombudsmen..................................................................................................44

1) The Office of the Ombudsman for Energy...................................................44

2) The Office for the Ombudsman for Telecommunication..............................46

Annex II. Schematic representation of important data of important Ombudsmen........61

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A. Mechanisms for resolving mass disputes

I. Compensation made by a criminal court

1. Give a general description of how the mechanism works

Obviously, the focus of this report is on the civil claim so that the criminal proceedings as such are not discussed, but only the civil claim brought before a criminal judge. Victims can formulate their civil claim either before1 or during2 criminal proceedings via the so-called “partie civile” technique.3 As a result, they become formal parties to the criminal proceedings.4 Besides the general conditions to commence an action,5 the admissibility of the civil claim of the partie civile depends on the admissibility of the criminal proceedings and whether or not the civil party alleges to have been prejudiced.6 One should note that assessing the condition of alleging to have been prejudiced includes the prerequisite of a personal harm. Consequently, the partie civile technique cannot be applied to claim redress for a third party’s harm,7 although there are statutory exceptions.8 For instance, Unia (the former Interfederal Centre for Equal Opportunities)9 can initiate legal proceedings for the benefit of an affected person within the framework of the Act of 30 July 1981.10 Almost all statutory exceptions allow associations to promote a collective interest which transcends the individual (level).11

1 Article 63 Code of Criminal Procedure. By doing so, the victim initiates the criminal proceedings, R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 34, no. 49.2 Article 67 Code of Criminal Procedure.3 S. Verhelst, De rol van het slachtoffer in het straf(proces)recht, Antwerpen, Intersentia, 2013, 194-195, nos. 211-212; R. Verstraeten, Handboek Strafvordering, Antwerpen, Maklu, 2012, 189 et seq.; S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 280-281.4 S. Verhelst, De rol van het slachtoffer in het straf(proces)recht, Antwerpen, Intersentia, 2013, 240, no. 246; R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 20, no. 23; S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 446. 5 Articles 17-18 Judicial Code contain the legal requirements of legal capacity and interest. The legal capacity is “the authority (the power), the basis of which allows an action to be initiated.”. The interest must be existing, immediate (or preventing the infringement of a right seriously threatened), personal and direct. The personal and direct nature of the interest prerequisite was added by case law (cf. infra, footnote 111). See: S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 440-441.6 M. Franchimont, A. Jacobs and A. Masset, Manuel de procédure pénale, Brussel, Larcier, 2012, (173) 174 et seq.; S. Verhelst, De rol van het slachtoffer in het straf(proces)recht, Antwerpen, Intersentia, 2013, 195, no. 213 et seq.; R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 20-32, nos. 25-44.7 Cass. 25 mei 2004, T.Strafr. 2550, 439.8 A. De Nauw, “Groepsbelangen en strafproces” in X, Liber Amicorum Frédéric Dumon, Antwerpen, Kluwer, 1983, (415) no. 1.1; M. Franchimont, A. Jacobs and A. Masset, Manuel de procédure pénale, Brussel, Larcier, 2012, (173) 184 et seq.; S. Van Dijck, “Over de ontvankelijkheid van de burgerlijke partijstelling door een beroepsfederatie: de vereiste van eigen schade”, T.Strafr. 2001, (94) 95, no. 3; S. Verhelst, De rol van het slachtoffer in het straf(proces)recht, Antwerpen, Intersentia, 2013, 211 et seq.; R. Verstraeten, De burgerlijke partij en het gerechtelijk onderzoek. Het slachtoffer in het strafproces, Antwerpen, Maklu, 1990, 80 et seq.; R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 27-30, nos. 39-41.9 See its website: http://unia.be/en/about-unia.10 Article 14, §2 Act of 30 July 1981 for the punishment of certain actions motivated by racism of xenophobia.11 S. Verhelst, De rol van het slachtoffer in het straf(proces)recht, Antwerpen, Intersentia, 2013, 221, no. 227.

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The correlate, however, is that mainly prohibitory injunctions are possible, instead if compensation on behalf and to the benefit of the actual victims.12 On some occasions, associations are allowed to claim compensation, albeit not on behalf and to the benefit of the actual victims.13

The major advantage for the civil party is the possibility to “piggyback” the evidence provided by the Public Prosecutor who has to demonstrate a violation of the law, so that the civil party only needs to prove damages and causation.14 If all three conditions for civil liability15 (damages, causation and a fault, i.e. violation of the law) – the victim only has to prove that the first two are met, the criminal judge will grant damages to the civil claimants.

In addition to the partie civile technique, one should mention the use of “special masters”.16 There is no explicit legal provision prescribing or addressing this.17 The appointment of special masters has only been used in the Gellingen case18 (2011), based on a creative and liberal interpretation of the expert witnesses provisions.19 The Court of Appeal of Mons appointed special masters (or coordinating experts) to manage, supervise and coordinate the work of the court-appointed doctors-experts examining the victims. They also were in charge of trying to reach an overall global settlement between the defendants and the victims.

Two additional mechanisms can be mentioned briefly: the amicable settlement with the Public Prosecutor and mediation in criminal cases. A defendant has no right to an amicable settlement with the Public Prosecutor. Only if certain conditions are met – mainly relating to the nature of the criminal offence – the Public Prosecutor can decide that the defendant will not be (further) prosecuted in exchange for a lump sum.20 What’s most interesting in the context of this report, is the prerequisite of an agreement between the defendant and the victim on both the scope of the loss and the redress settlement.21 Furthermore, redress must have been offered for the loss suffered (or at the least the non-disputed part) and the defendant must have recognized (in writing) his civil liability.22 This might prove a useful tool in dealing with mass disputes, since it shifts the redress settlement to out-of-court negotiations while at the same time ensuring redress. A final mechanism is mediation in criminal cases23 in order to prevent criminal proceedings. The Public Prosecutor can request the defendant to receive a

12 S. Voet, Een Belgische vertegenwoordigende collectieve rechtsvordering, Antwerpen, Intersentia, 2012, 45, nos. 43-44.13 See, for instance, the claim of Unia in Rb. Antwerpen 25 June 2014, AN56.LB.48751-12, available at http://jure.juridat.just.fgov.be/JuridatSearchCombined/?lang=nl.14 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 122; S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 447.15 Article 1382 Civil Code.16 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 283.17 Although after the Gellingen case a ministerial working group was set up (of which the first author of this report was a member) that wanted to lay down such a provision in the Judicial Code. This was never realized.18 As a result of the construction of a gas pipeline, gas pressure inside the pipeline has increased which led to the rupture of the pipeline and a massive explosion. See Part B of this report.19 Articles 962-991undecies Judicial Code, especially Article 977.20 Article 216bis Code of Criminal Procedure.21 Article 216bis, §2, paragraph 6 Code of Criminal Procedure.22 Article 216bis, §4 Code of Criminal Procedure.23 Article 216ter Code of Criminal Procedure.

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particular training or to follow a treatment, but the Public Prosecutor must always also request redress.24

The following questions will be answered solely with regard to the partie civile technique.

2. State when the mechanism was enacted and whether it was part of a larger/broader legislative reform or a stand-alone initiative

The partie civile technique is based on Articles 63 and 67 of the Code of Criminal Procedure, dating back from its introduction through the Code d’instruction criminelle in 1808.25 However, the principle that a victim could begin criminal proceedings by bringing his civil claim before a criminal judge was only acknowledged 1913.26

3. State its scope: sectoral or generic/trans-substantive

The partie civile technique is not linked to a particular sector but is part of the law of criminal procedure. Apart from the exceptions mentioned below (question 5), the technique can be used to obtain compensation for harm suffered, regardless of the nature of the criminal case.

4. State what remedies are allowed: injunctive, declaratory, compensatory, or a combination

The aim of a civil party using the partie civile technique is obtaining compensation for the harm suffered as a result of the criminal offence.27 As a result, the criminal court will grant compensation (if the conditions are fulfilled). Yet, even in case of rejecting the civil claim, the finding of law violation provides a certain declaratory effect for cases pending before civil courts. In that regard, civil judges have to suspend civil cases against the same defendant as the concurrent criminal case, until the criminal judge has ruled on the criminal case,28 which is expressed as follows: “le criminel tient le civil en état”.29 Given the aim of preventing conflicting decisions by the civil judge and the criminal judge and given the principle of res iudicata from the criminal judge to the civil judge, the decision by the criminal judge takes priority,30 which thus leads to the suspension of the civil case when confronted with a concurrent criminal case.

5. State who has standing24 S. Verhelst, De rol van het slachtoffer in het straf(proces)recht, Antwerpen, Intersentia, 2013,418, no. 504; R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 328.25 R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 15, no. 20 and 34, no. 49.26 Cass. 10 februari 1913, Pas. 1913, I, 103, concl. PG Terlinden.27 Cass. 15 februari 1978, Arr.Cass. 1987, 714; R. Declercq, Beginselen van strafrechtspleging, Mechelen, Kluwer, 2014, 1175, no. 2966; P. Lemmens, “Het optreden van verenigingen in rechte ter verdediging van collectieve belangen”, RW 1984, (2001) 2009, no. 8; R. Verstraeten, Handboek Strafvordering, Antwerpen, Maklu, 2012, 183; R. Verstraeten, De burgerlijke partij en het gerechtelijk onderzoek. Het slachtoffer in het strafproces, Antwerpen, Maklu, 1990, 37, no. 27 and 86, no. 90.28 Article 4, first paragraph Preliminary Title Code of Criminal Procedure.29 R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 74, no. 110; S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 281.30 P. Taelman and S. Voet, “Procesrechtelijke aspecten van aansprakelijkheidsvorderingen” in X, XXXIIIste postuniversitaire cyclus Willy Delva 2006-2007 – Aansprakelijkheid, aansprakelijkheidsverzekering en andere schadevergoedingssystemen, Mechelen, Kluwer, 2007, (743) 780-781, no. 35.

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Although, in general, everyone harmed by a criminal offence can make use of the partie civile technique, the legislator has prevented a civil party from initiating legal proceedings against certain categories of persons by formulating its civil claim before a criminal judge prior to any criminal proceeding.31 For instance, a civil party cannot initiate criminal proceedings against minors, ministers or members of parliament.

6. State, where relevant, whether it is based on an opt-out or opt-in system

The partie civile technique entails an opt-in system, given the need for all civil claimants to individually come forward and the final duty for the criminal court to adjudicate all civil claims.32

7. State any specific rules on case management, or whether the general rules apply

There are no specific rules regarding case management. The criminal judge will apply the same rules as a civil judge.

8. State any specific rules on funding and financing these mechanisms, or whether general rules apply

The general rules apply. During the criminal proceedings, no courts costs or fees are required for the partie civile technique. As a result, the procedure is very accessible. Given the far-reaching possibility for the victim to initiate the criminal proceedings, a counterweight exists precisely when the victim initiates the criminal proceedings before the examining judge (juge d’instruction) or by means of a direct summons before the criminal judge.33 In those two particular cases, consignation is generally due by the victim to ensure (partial) cover of the legal costs if the defendant were not to be sentenced. Whether the civil party initiated the criminal proceedings or merely took part in already ongoing criminal proceedings, also plays a role with regard to the “procedural cost indemnity” (rechtsplegingsvergoeding). This is the fixed compensation of the costs and fees of the lawyer of the party in whose favor the case was decided.34 A civil party who loses the case, will only have to pay the procedural cost indemnity when the civil party herself initiated the criminal proceedings.35

31 R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 39, no. 56 et seq.32 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 122; S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 282.33 R. Verstraeten, D. Van Daele, A. Bailleux and J. Huysmans, De burgerlijke partijstelling: analyse en toekomstperspectief, Antwerpen, Intersentia, 2012, 36, no. 51.34 Article 1022, first paragraph Judicial Code.35 J. Meese, “De rechtsplegingsvergoeding in strafzaken” in M. Dambre and P. Lecocq (eds.), Rechtskroniek voor de vrede- en politierechters 2013, Brugge, die Keure, 2013, (275) 279-280, no. 5; F. Van Volsem, “De rechtsplegingsvergoeding en de strafrechter: een ietwat moeilijk huwelijk”, NC 2008, (379) 387, no. 43.

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II. Mass redress power public regulator or enforcer


There are multiple public enforcers or regulators in the Belgian legal landscape, but generally their powers regarding restitution or civil sanctions are limited.36 The focus is on deterrence rather than restitution.37 Nevertheless, victims can claim compensation following a decision on public enforcement (follow-up), arguing that the tort (or at least the fault element) has been proven by the findings of a violation.38

After a general assessment of the questions below, some closing remarks are made regarding two important regulators and their link with redress, namely the Financial Services and Markets Authority (FSMA)39 and the Commission for the Regulation of Electricity and Gas (CREG).40


There is no larger legislative reform embedding the various public enforcers and regulators.


The mechanism is sectoral. It is restricted to the scope of the regulator concerned, e.g. telecommunication, medicine or competition.


The remedies differ from one public regulator or enforcer to another. Generally speaking, one might notice the wide-ranging investigative powers and sometimes even the power to negotiate settlements of infringements. However, once third parties (i.e. consumers) are concerned and start to complain, the case is usually referred to ombudsmen or the Public Prosecutor.41

5. State who has standing

The rules vary among the different public regulators or enforcers. For example, everyone can make notifications to the Federal Agency for Medicines and Health Products, whilst

36 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 274 and 279.37 S. Voet, “Collectieve afwikkeling van consumenten-massaschade. Pleidooi voor een geïntegreerde aanpak”, DCCR 2013, issue 3, (201) 210.38 See, for competition law: T. Schoors, T. Baeyens and W. Devroe, “Schadevergoedingsacties na kartelinbreuken”, NjW 2011, issue 239, (198) 199, no. 4.39 See: http://www.fsma.be/. The FSMA is an autonomous supervising entity responsible (together with the National Bank of Belgium) for the regulatory supervision of multiple player in the field of Belgian financial business.40 See: http://www.creg.be/nl/index.html. The CREG is one of the four regulators in the Belgian energy sector. It is the federal regulator which (among other tasks) looks after the essential consumer interests, although consumers are referred to the Energy Ombudsman for complaints.41 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 279.

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complaints about financial services are to be submitted by consumers to certain specialized institutions, such as the Ombudsman in financial matters or the Insurance Ombudsman.42


Although a lot of similar applications can hint at a collective problem,43 every consumer or affected person needs to notify, complain or act in order to be involved in the proceeding at least try to trigger action from the public regulator or enforcer.


There are no specific rules.


With regard to funding or financing, we do not intend to list all public regulators and enforcers, but rather mention the funding or financing of some major players by way of example. The FSMA, for instance, is financed by the traders and persons under its supervision or of which the transactions or products are under the FSMA’s supervision. As for the CREG, in order to finance some public service obligations and the costs due to the CREG’s regulatory role, a federal contribution is levied on the final consumers of electricity and gas.

Closing remarks:

A first remark relates to the general finding that restitution and civil sanctions are not the main focus of public regulators or enforcers.44 One could take the example of the FSMA. When a supervised trader does not comply with the regulations in place, the FSMA has a wide array of instruments to deal with this non-compliance and to sanction the trader.45 The (administrative) sanctioning has to be situated in the relationship between the FSMA and the supervised trader, not vis-à-vis the financial consumer.46 Although a consumer’s complaint might trigger an investigation and administrative action, a harmed financial consumer will need to have recourse to other instruments outside the regulatory framework.47

42 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 275 and 277.43 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 291.44 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 279.45 For instance, require the publishing of a correction, inspections, publishing warnings, suspend trading, striking an intermediary from the register, revoking authorization, imposing fines or penalties.46 This also seems true for the Directorate-General Enforcement and Mediation (part of the Federal Public Service Economy, S.M.E.s, Self-Employed and Energy) which can arrange the transactional settlement of violations for some legislations and in the framework of some legislations has the power to offer the offender the opportunity to pay an amount of money to halt further prosecution, but this doesn’t directly concern the relationship with the harmed consumer. See for a list of the regulator’s powers: Annual Report 2011, http://economie.fgov.be/en/binaries/Annual_report_E7_2011_tcm327-200828.pdf, p. 31.47 R. Houben and D. Vanderstraeten, “De bescherming van de financiële consument door de FSMA”, DCCR 2016, issue 111, (21) 60, no. 49.

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One should nevertheless pay attention to the possibility of including the consumer indirectly in a settlement between the FSMA and the non-complying trader. The fact that the consumer is not a party to that settlement, does not imply that the consumer cannot be kept in mind when drafting the terms of the settlement. A settlement concerning interest rate derivatives to cover variable rate loans to SMEs between the FSMA and a number of financial institutions provides an excellent example.48 After inspection, the FSMA concluded that not all rules regarding the duty of care and the supply of information were observed by the financial institutions concerned so that the FSMA pressed for several interventions. Some only regarded the institutions, such as their duty to make sure that their employees are qualified to assume the responsibility imposed onto them. Yet, the consumer was not forgotten. The financial institutions concerned agreed to pay each client a certain amount of money by way of commercial compensation. That way, compensation is provided to the consumers although the settlement was only reached between the FSMA and a number of financial institutions.

In addition to including consumers’ redress in settlements, the statutory framework can also provide some assistance to financial consumers. In that regard, Article 30ter of the Act of the 2nd of August 200249 comes to mind. It contains a rebuttable presumption that in case a financial consumer is harmed by a transaction and a trader listed in the next paragraph of the provision has committed a certain breach as a result of that transaction, the transaction at hand is presumed to be the result of the breach. This means that the presumption entails that the investor would not have made the same decision without the breach.50

A second remark concerns the CREG. The statutory framework provides for the creation of a Dispute Resolution Chamber which would resolve disputes between the network administrator and the network users regarding the duties of the network administrator, the distribution network administrators and the administrators of closed industrial networks within the context of the Law on the organization of the electricity market (and its implementing orders), except for disputes regarding contractual rights and obligations.51 The (administrative) decision of the Dispute Resolution Chamber is binding.52 The law in the books certainly leaves room for offering redress to consumers, but the law in practice has not yet developed since the Dispute Resolution Chamber was unable to operate in 2015 due to a lack of appointment of its members.53

48 See: http://www.fsma.be/en/in-the-picture.aspx, 19-05-2015, “Interest rate derivatives to cover variable rate loans to SMEs” (only available in Dutch and French).49 Law of 2 August 2002 on the supervision of the financial sector and on financial services, Official Gazette 4 September 2002.50 T. Van Dyck and L. Denturck, “De burgerlijke sanctie van artikel 30ter van Twin Peaks II/ De tanden van een papieren tijger?”, Bank Fin. R. 2013, (274) 275, no. 6.51 Article 29 Law of 29 April 1999 on the organization of the electricity market, OG BS 11 May 1999.52 Article 29, §3 in fine Law of 29 April 1999 on the organization of the electricity market, Official Gazette 11 May 1999.53 See: http://www.creg-ar.be/2015/report-en.html#principales (p. 82 of the report).

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III. ADR, ombudsmen or compensation schemes


With regard to A(O)DR, the Belgian digital ADR and ODR portal called Belmed54 is worth mentioning.55 It consists of two pillars: (a) the offering of ADR information and (b) providing ODR for consumers and traders.56 Belmed not only contains the necessary information on ADR agencies, but it also directly directs consumers or traders to the competent sectoral ADR scheme.57 Sometimes, representative collective ADR procedures can be provided. They can be defined as follows: “A representative (e.g. a single consumer or a consumer association) can bring a collective case to the scheme on behalf of a definite number of affected consumers and the decision applies only to those consumers who have signed up to be included in the complaint.”58 The Office of the Ombudsman for the Postal Sector (OMPS), for instance, allows a representative collective ADR procedure. Private persons as well as companies, administrations, associations or organizations can file a complaint whilst having themselves represented, on the condition that representative has a mandate and that the identity of both the client(s) and the representative can be established.59 Also other ombudsmen accept complaints filed by means of representation, such as Ombudsrail (the Office of the Ombudsman for Train Travelers),60 the Office of the Ombudsman for Telecommunications,61 the Office of the Ombudsman for Energy,62 the Office of the Ombudsman for Insurances,63 Ombudsfin (the Ombudsman in Financial Conflicts)64 and the Consumer Mediation Service (cf. infra).65

54 See: http://economie.fgov.be/en/disputes/consumer_disputes/Belmed/#.V_J4tyGLRMw.55 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 285.56 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 350, no. 36 and 351, no. 39; S. Voet, “Buitengerechtelijke en gerechtelijke afwikkeling van geschillen inzake producten, diensten en bouwwerken” in I. Claeys and R. Steennot (eds.), XLste postuniversitaire cyclus Willy Delva 2014-2015 – Aansprakelijkheid, veiligheid en kwaliteit, Mechelen, Kluwer, 2015, (715) 725, no. 8; S. Voet, “Belgium” in C.J.S. Hodges, I. Benöhr and N. Creutzfeldt-Banda (eds.), Consumer ADR in Europe. Civil Justice Systems, London, Hart Publishing, 2012, (25) 26.57 C. Hodges, I. Benöhr and N. Creutzfeldt-Banda, “Consumer-to-business dispute resolution: the power of CADR”, ERA Forum 2012, (199) 208.58 Civic Consulting of the Consumer Policy Evaluation Consortium, Final Report to DG SANCO – Study on the use of Alternative Dispute Resolution in the European Union, 2009, http://ec.europa.eu/consumers/archive/redress_cons/adr_study.pdf (accessed on 9 September 2016), 50.59 See: http://www.omps.be/en/679/FAQ/Frequently_asked_questions/Frequently_asked_questions.aspx.60 See: http://www.ombudsmanrail.be/nl/faq.html?IDC=73.61 See Article 21 of the Rules of Procedure of the Telecommunications Ombudsman’s Service (09/20/2015), available at: http://www.ombudsmantelecom.be/en/how-to-submit-a-complaint.html?IDC=106.62 See: http://www.mediateurenergie.be/fr/faq (2nd question).63 See: http://www.ombudsman.as/nl/complaint/form.asp.64 See Article 10 of the Rules of Procedure, available (in French) at http://www.ombudsfin.be/sites/default/files/Nouveau%20r%C3%A8glement%20de%20proc%C3%A9dure%20Ombudsfin.pdf. 65 See Article 21 of the Rules of Procedure of the Consumer Ombudsman’s Office, available at http://www.consumerombudsman.be/sites/default/files/content/SMCDocuments/anglais_-_smc_-_reglement_de_procedure.pdf.

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The Belgian landscape contains multiple ombudsmen. They are the contact point for consumers having a complaint situated within a specific domain. Consumers having a complaint about a financial service, for instance, will address the Ombudsman in financial matters or the Insurance Ombudsman.66 In 2015, the “Consumer Mediation Service”67 was created, composed of six68 exiting ombudsmen,69 but not involving the sectoral and mostly joint conciliations boards.70 It is Belgium’s residual ADR entity handling disputes falling outside the competence of the existing ADR entities.71 The Act of 4 April 201472 introducing the Consumer Mediation Service transposed the European Directive on consumer ADR73 (as well as some provisions of the Services Directive)74 rather swiftly and because of the already existing Belmed portal, Belgium was among the first countries to boost the existing ADR and to add a residual ADR entity, namely the Consumer Mediation Service.75 Besides providing information through its front office,76 the Consumer Mediation Service acts either as an intermediary in case of consumer disputes77 falling within the scope of an existing qualified entity78 or as the actual ADR entity when no other entity is competent).79 As to its latter capacity, the Consumer Mediation Service will mediate (through the intervention of an independent mediator)80 between the consumer and the trader with the aim of reaching a

66 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 277.67 See: http://www.consumerombudsman.be/en.68 Namely, the four public ombudsmen and two private ones (for financial services and for insurances) because of their large number of complaints and considerable size comparable to the public ombudsmen. See: S. Voet, “Buitengerechtelijke regeling consumentengeschillen”, NjW 2014, issue 308, (674) 677, no. 10.69 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 346, no. 22; S. Voet, “Buitengerechtelijke en gerechtelijke afwikkeling van geschillen inzake producten, diensten en bouwwerken” in I. Claeys and R. Steennot (eds.), XLste postuniversitaire cyclus Willy Delva 2014-2015 – Aansprakelijkheid, veiligheid en kwaliteit, Mechelen, Kluwer, 2015, (715) 723, no. 6.70 H. De Coninck, “Buitengerechtelijke regeling van consumentengeschillen”, DCCR 2014, (23) 29-30.71 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 343, no. 7; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 123.72 Act of 4 April 2014 regarding the introduction of Book XVI, “extrajudicial settlement of consumer disputes” in the Code of Economic Law, Official Gazette 12 May 2014.73 Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), OJ 18 June 2013, L 165, 63.74 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27 December 2006, L 376, 36.75 H. De Coninck, “Buitengerechtelijke regeling van consumentengeschillen”, DCCR 2014, (23) 23-25.76 Articles XVI.13-14 Code of Economic Law.77 Defined by Article I.19, 2° Code of Economic Law as every dispute between a consumer and a trader concerning the execution of a sales or service agreement or the use of a product (be it good or service).78 Article XVI.15 Code of Economic Law.79 Articles XVI.16 et seq. Code of Economic Law.80 FOD Economie, K.M.O., Middenstand en Energie, “Belmed, nu ook voor commerciële geschillen tussen ondernemingen”, press release of 27 maart 2014, available (in Dutch) at http://economie.fgov.be/nl/binaries/20140327_pb_Belmed_handelsgeschillen_tussen_ondernemingen_tcm325-245224.pdf.

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settlement.81 If a settlement proves impossible, the Consumer Mediation Service cannot impose a decision on the parties. It can only issue non-binding recommendations.82 The trader is not obliged to follow the recommendation,83 but the trader must give his reasoned opinion within 30 calendar days to the Consumer Mediation Service and to the complainer if the recommendation is not followed.84

According to the first annual report of the Consumer Mediation Service, 2921 complaints were filed since the launch of the Consumer Mediation Service on 1 June 2015, 2174 of which were registered as falling exclusively within the scope of the Consumer Mediation Service.85 1242 complaints were processed and closed, 278 complaints were inadmissible, 625 have been referred and 747 complaints did not come within the scope of the Consumer Mediation Service. The complaints were mainly situated in the areas of electronics (both ICT and non-ICT), residential maintenance services and products, furniture, domestic appliances (both large and small ones), second-hand cars, sports and recreation, and clothing. 1 complaint out of 4 regarded a guarantee. Furthermore, 123 questions in writing for additional information were received. With regard to the mediation provided by the Consumer Mediation Service, the average processing time of a file in 2015 was 38 days. Almost half of the closed files (48,5 %) ended in a settlement and 57,5% of the closed files had a positive result for all parties involved.

Furthermore, one may note the introduction in the Code of Economic Law of a list of criteria86 that an ADR entity has to meet in order to be a qualified entity for the out-of-court settlement of consumer disputes.87 This implements several provisions (Articles 5 et seq.) of the European Directive on consumer ADR related to quality safeguards and prerequisites.88 So far, 13 ADR entities have been listed by the Federal Public Service Economy, S.M.E.s, Self-Employed and Energy as being qualified: the Consumer Mediation Service, the Office for the Ombudsman for Telecommunication, Ombudsfin (the Ombudsman in Financial Conflicts), the Office for the Ombudsman for the office of notary,89 the Office of the Ombudsman for Insurances, Reconciliation Commission Construction vzw (cf. infra), the Office of the Ombudsman for Energy, the Travels Conciliation Board vzw (both for the reconciliation and the arbitration procedures so that it counts as 2 entities, cf. infra), the Reconciliation

81 S. Voet, “Buitengerechtelijke regeling consumentengeschillen”, NjW 2014, issue 308, (674) 680, no. 18.82 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 348, no. 30.83 S. Voet, “Buitengerechtelijke en gerechtelijke afwikkeling van geschillen inzake producten, diensten en bouwwerken” in I. Claeys and R. Steennot (eds.), XLste postuniversitaire cyclus Willy Delva 2014-2015 – Aansprakelijkheid, veiligheid en kwaliteit, Mechelen, Kluwer, 2015, (715) 724, no. 6.84 Article 17, §2 Code of Economic Law.85 See the Annual Report 2015 (in Dutch), available at http://www.consumerombudsman.be/sites/default/files/content/download/files/jaarverslag_cod_2015.pdf.86 Article XVI.25 Code of Economic Law.87 Article XVI.24 Code of Economic Law.88 H. De Coninck, “Buitengerechtelijke regeling van consumentengeschillen”, DCCR 2014, (23) 27; S. Voet, “Buitengerechtelijke en gerechtelijke afwikkeling van geschillen inzake producten, diensten en bouwwerken” in I. Claeys and R. Steennot (eds.), XLste postuniversitaire cyclus Willy Delva 2014-2015 – Aansprakelijkheid, veiligheid en kwaliteit, Mechelen, Kluwer, 2015, (715) 719-720, no. 3 and 724, no. 7; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 123; S. Voet, “Buitengerechtelijke regeling consumentengeschillen”, NjW 2014, issue 308, (674) 683, no. 23.89 See: https://www.ombudsnotaris.be/.

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Commission Automoto (cf. infra), The Office of the Ombudsman for the Postal Sector, the Ombudsman Service for Consumer Disputes relating to the Legal Profession (OCA)90 and the Ombudsman Service of the Lawyers of the Order of French-speaking and German-speaking bars (Service Ombudsman des avocats de l’Ordre des barreaux francophones et germanophone).91

A final remark relates to the step prior to contacting an ADR entity: the internal complaints procedure. The Code of Economic Law prescribes that a trader has to provide the consumer with the necessary information concerning their complaint service or the potential ADR obligations of the trader, 92 on top of its general obligation to inform.93

For a number of important ADR entities, the answers to the subsequent questions are schematically presented in Annex I. We will limit the next part of our overview to Belmed.


Belmed was created in several phases and finally presented in April 2011.94 The Directorate-General Enforcement and Mediation within the Federal Public Service Economy, SME’s (small and medium enterprises), Self-Employed and Energy, launched the Belmed project under its mediation umbrella in the aftermath of the modernization of the public administration.95


Belmed deals with all existing Belgian ADR agencies, but also offers the relevant information for each sector.96 In that sense, it provides information both in a trans-sectoral and sectoral way. As far as Belmed’s second pillar is concerned, i.e. the possibility of making an online application for arbitration, conciliation, or mediation, the approach is sectoral. The applicant has to fill out the (sub)sector in the online application form and the Belmed system sends the application to the competent agency.97 In short, the procedure goes as follows.98 When first

90 See: http://oca.ligeca.be/en/.91 See: http://obfg.ligeca.be/fr.92 Articles XVI.2 and 3 Code of Economic Law.93 Article III.74 Code of Economic Law.94 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 285.95 S. Voet, “Belgium” in C.J.S. Hodges, I. Benöhr and N. Creutzfeldt-Banda (eds.), Consumer ADR in Europe. Civil Justice Systems, London, Hart Publishing, 2012, (25) 25-26.96 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 286-287.97 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 288.98 See: S. Voet, “Buitengerechtelijke en gerechtelijke afwikkeling van geschillen inzake producten, diensten en bouwwerken” in I. Claeys and R. Steennot (eds.), XLste postuniversitaire cyclus Willy Delva 2014-2015 – Aansprakelijkheid, veiligheid en kwaliteit, Mechelen, Kluwer, 2015, (715) 726-728, no. 9; S. Voet, “Belgium” in C.J.S. Hodges, I. Benöhr and N. Creutzfeldt-Banda (eds.), Consumer ADR in Europe. Civil Justice Systems, London, Hart Publishing, 2012, (25) 29 et seq.; S. Voet, “Belmed: het digitale toegangsloket voor consumenten-A(O)DR”, RW 2011-12, issue 32, (1439) 1440-1441.

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visiting the Belmed platform,99 the consumer or trader will be reminded of the two ‘accessibility criteria’: (1) the party must have already contacted the other party to report the problem and to try to solve it, and (2) the matter has not been brought to a court of justice. If the first criterion is not met, the applicant is directed to a guide providing the necessary information and containing an example of a formal notice. If the second criterion is not met, the applicant is given some information on mediation during a court proceeding.100 If both criteria are met, the applicant is able to register either through an his or her electronic ID card or token with the federal authentication portal (only for Belgian residents) or through the creation of a Belmed account. The registration can be validated by clicking on a link in the confirmation email sent to the consumer or trader. Within the interface of the Belmed account, the applicant can make a new request either as a private individual consumer, as an intermediary for a private individual consumer, or as an intermediary for a company. The applicant is again confronted with the ‘accessibility criteria’ before having to fill out the online request. As already mentioned, the sector and subsector will need to be filled out, as well as the sales method, the type of problem and the value of the claim.


Belmed is a digital portal which does not provide remedies itself. It operates as a facilitating instrument and intermediary . Disputes are dealt with by the competent ADR entities, to which Belmed refers the dispute.101

Despite its broad investigative powers, the Consumer Mediation Service can make a recommendation to the trader albeit not binding.102


Consumers or traders must comply with two accessibility criteria when they want to use Belmed.103 First, they should have contacted the other party to report the problem, to no avail. Second, there can be no court proceeding pending. Furthermore, the consumers must reside in an EU Member State and the trader must be registered in the Belgian Crossroads Bank for Enterprises.


99 See: http://economie.fgov.be/en/disputes/consumer_disputes/Belmed/#.V_N84yGLRMw.100 The text of Article 1730, §1 Judicial Code will appear: “any party can propose to the other parties, independently of any judicial or arbitral procedure, before, during or after a judicial procedure, to resort to the mediation process.”101 H. De Coninck, “Nieuw online-platform voor consumentengeschillen (Belmed)”, DCCR 2011, issue 2, (97) 97; S. Voet, “Collectieve afwikkeling van consumenten-massaschade. Pleidooi voor een geïntegreerde aanpak”, DCCR 2013, issue 3, (201) 209, no. 8.102 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 348-349, nos. 30-31.103 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 287; S. Voet, “Belgium” in C.J.S. Hodges, I. Benöhr and N. Creutzfeldt-Banda (eds.), Consumer ADR in Europe. Civil Justice Systems, London, Hart Publishing, 2012, (25) 29.

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With regard to Belmed, each consumer or trader can file a new request either as a private individual consumer, as an intermediary for a private individual consumer, or as an intermediary for a company. Hence, representation is possible, but only on an opt-in basis.


There are no specific rules on case management.


The general rules apply. The Consumer Mediation Service is an autonomous public service with legal personality.104 It is an administrative service within the meaning of the Act of 22 May 2003105 as far as its bookkeeping, budget and control is concerned.106 It is financed through a subsidy out of the general expenditure budget and by means of a part of the statutory or regulatory “ombuds contributions” already collected for the ombudsmen making part of the Consumer Mediation Service.107

104 Article XVI.5 Code of Economic Law.105 Act on the organization of the budget and accountability of the federal state (BS 3rd of July 2003).106 S. Voet, “Buitengerechtelijke regeling consumentengeschillen”, NjW 2014, issue 308, (674) 677, footnote 35.107 Article XVI.11 Code of Economic Law.

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IV. Private enforcement mechanisms


All legal actions in Belgium must meet two preliminary legal conditions.108 First, the plaintiff must have the required legal capacity.109 Second, in order to bring an action before court, a legal interest is required which has to be existing and immediate (or preventing the infringement of a seriously threatened right).110 Case law has added the additional conditions of the personal and direct nature of the interest.111 The pivotal case where the Court of Cassation of the interest prerequisite gives its interpretation of the interest requirement and expresses the need for a personal and direct interest, is the Eikendael judgment.112 At first sight, this seems to rule out any representative action.113 Yet, the judgment itself already mentioned the possibility of statutory exceptions so that collective actions are possible within those exceptional frameworks.114 They are nevertheless limited in nature, since only associations or organizations satisfying certain legal criteria have standing, and they can only institute injunctive or preventive actions (which is the biggest shortcoming).115 Furthermore, these collective actions only exist in a limited number of field.116

108 See: S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 441.109 Article 17 Judicial Code.110 Articles 17-18 Judicial Code.111 S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 441.112 Court of Cassation 19 November 1982, Pasicrisie 1983, I, 219. See on the jurisprudence of the Belgian Court of Cassation: G. Closset-Marchal, “L’action d’intérêt collectif au regard de la jurisprudence de la Cour de Cassation” in J. van Compernolle (ed.), Les actions collectives devant les différentes juridictions, Luik, Formation permanent CUP, 2001, 5-28.113 B. Allemeersch and M. Piers, “De invoering in België van een class action naar Amerikaans model” in G. Closset-Marchal and J. van Compernolle (edd.), Vers une “class action” en droit belge?, Brugge, die Keure, 2008, (1) 32, no. 37; W. Eyskens and N. Kaluma, “La class action et le droit belge. Va-et-vient de part et d’autre de l’Atlantique”, JT 2008, (481) 485.114 E. De Baere, “Procederen in zaken van massaschade: naar een class action in Belgisch recht?”, TPR 2007, (7) 25, no. 27; C. Hodges, “Multi-Party Actions: A European Approach”, Duke Journal of Comparative & International Law 2001, Vol. 11, Issue 2, (321) 323; S. Lodewijckx and A. Catteau, “Introduction des “class actions” en Belgique: opportunité ou menace pour les assureurs?”, Bull.Ass. 2011, issue 374, (4) 8, no. 3; S. Lust and S. Voet, “”Voorwaarden van de burgerlijke rechtsvordering” in G. Closset-Marchal and J. van Compernolle (eds.), Vers une “class action” en droit belge?, Brugge, die Keure, 2008, (83) 104, no. 26 et seq.; M. Piers, “Class actions. Verenigde Staten v. Europa. Rechtsvergelijkende beschouwingen naar aanleiding van de Wal-Martzaak”, NjW 2007, issue 171, (825) 836, no. 33; A. Puttemans, “L’introduction d’une forme d’action collective en droit belge” in A. Legendre (ed.), L'action collective ou action de groupe: Se préparer à son introduction en droit français et en droit belge, Brussel, Larcier, 2010, (19) 20-21; E. Stoop, “Class action”, Ad Rem 2008, issue 5, (29) 31; J. Van Compernolle, “A propos de l’action d’intérêt collectif”, Journ.Proc. 1983, issue 23, (27) 27; S. Voet, “Buitengerechtelijke en gerechtelijke afwikkeling van geschillen inzake producten, diensten en bouwwerken” in I. Claeys and R. Steennot (eds.), XLste postuniversitaire cyclus Willy Delva 2014-2015 – Aansprakelijkheid, veiligheid en kwaliteit, Mechelen, Kluwer, 2015, (715) 759, no. 41; S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 443-445.115 P. Taelman and S. Voet, “Belgium and Collective Redress: the Last of the European Mohicans” in E. Dirix and Y.-H. Leleu (eds), The Belgian reports at the Congress of Washington of the International Academy of Comparative Law, Brussel, Bruylant, 2011, (305) 318, no. 15; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 122.116 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 122.

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Other instruments for multi-party actions exist,117 albeit deficient in adequately offering collective redress.118 First, connected119 claims can be filed together.120 Second, third parties can intervene in pending proceedings and formally become a party to the proceeding.121 Third, the technique of party representation allows the representation of a group of individuals by a person who has received an explicit mandate from all those individuals to do so.122

Two mechanisms merit further elaboration: the Belgian class action and prohibitory injunctions.123

In 2014, the Belgian legislator introduced a class action system to resolve mass disputes.124 The core idea is bringing an aggregate of individual consumer claims125 aiming at obtaining redress before a court via one class representative126 meeting certain criteria in a single procedure without prior mandate.127 The procedure consists of four phases: a certification

117 P. Taelman and E. De Baere, “New trends in standing and res iudicata in collective suits (Belgium)” in A.W. Jongbloed (ed.), The XIIIth World Congress of Procedural Law: The Belgian and Dutch Reports, Antwerpen, Intersentia, 2008, (5) 5 et seq.118 B. Allemeersch and M. Piers, “De invoering in België van een class action naar Amerikaans model” in G. Closset-Marchal and J. van Compernolle (eds.), Vers une “class action” en droit belge?, Brugge, die Keure, 2008, (1) 38, no. 47; E. De Baere, “Procederen in zaken van massaschade: naar een class action in Belgisch recht?”, TPR 2007, (7) 63, no. 102; S. Lust and S. Voet, “”Voorwaarden van de burgerlijke rechtsvordering” in G. Closset-Marchal and J. van Compernolle (eds.), Vers une “class action” en droit belge?, Brugge, die Keure, 2008, (83) 110, no. 31; G. Renier, “La class action ou l’action de groupe en droit bancaire et financier” in V. Colaert and A. Lecocq (eds.), De levenscyclus van bank-, beleggings-, en verzekeringsproducten, Brussel, Larcier, 2014, (199) 200; E. Stoop, “Class action”, Ad Rem 2008, issue 5, (29) 31-32; P. Taelman and P. Thion, “Bundeling van vorderingen”, TPR 2003, (1489) 1547, no. 76; P. Taelman and S. Voet, “Belgium and Collective Redress: the Last of the European Mohicans” in E. Dirix and Y.-H. Leleu (eds), The Belgian reports at the Congress of Washington of the International Academy of Comparative Law, Brussel, Bruylant, 2011, (305) 323-325; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 122; S. Voet, Een Belgische vertegenwoordigende collectieve rechtsvordering, Antwerpen, Intersentia, 2012, 21 et seq.; S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 447-448; S. Voet, “Een Belgische vertegenwoordigende collectieve rechtsvordering: vier bouwstenen voor een Belgische class action”, RW 2012-13, issue 18, (682) 684, no. 6 et seq.119 As defined by Article 30 Judicial Code.120 Article 701 Judicial Code.121 Articles 15 and 16 Judicial Code.122 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 122.123 In the absence of the possibility of claiming damages, prohibitory injunctions are a valuable tool. This was the case, for example, in the energy sector before the introduction of the Belgian class action, see: P. Boucquey, “L’action en reparation collective dans le secteur de l’énergie” in J. Englebert and J.-L. Fagnart (eds.), L’action en reparation collective, Limal, Anthemis, 2015, (239) 250, no. 20124 The class action system was introduced by the Law of the 28 March 2014 (Wet tot invoeging van titel 2 "Rechtsvordering tot collectief herstel" in boek XVII "Bijzondere rechts procedures" van het Wetboek van economisch recht en houdende invoeging van de definities eigen aan boek XVII in boek I van het Wetboek van economisch recht, Official Gazette 29 March 2014).125 Article XVII.38 Code of Economic Law states that the group of consumers represented consists of all consumers who have personally suffered a loss due to a common cause, albeit with a difference between the opt-in and the opt-out model.126 H. Boularbah and C. Van Themsche, “L’action en réparation collective ou la “class action” à la belge. Présentation synthétique de la loi du 28 mars 2014”, In Foro 2015, issue 46, (4) 7, no. 8; E. Falla, “Le recours collectif en droit de la consommation: présentation de la loi belge” in A. Puttemans (ed.), Le droit de la consommation dans le nouveau Code de droit économique, Brussel, Bruylant, 2014, (117) 141.127 A. Bochon and S. Fehrat, “Law and practice of the collective redress procedure in Belgium”, REDC 2014, issue 3, (511) 511; H. Boularbah and C. Van Themsche, “L’action en réparation collective ou la “class action” à la belge. Présentation synthétique de la loi du 28 mars 2014”, In Foro 2015, issue 46, (4) 6, no. 3; E. De Baere,

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phase, a mandatory negotiation phase, a potential phase on the merits and an enforcement phase.128 They will be discussed in the following paragraphs, before turning to the mechanism of the prohibitory injunctions.

The first phase is the certification phase. After a petition129 is filed by the designated representative,130 the court rules on the admissibility of the claim131 and imposes an opt-in or opt-out model.132 With regard to the admissibility of the class action, there are three class action prerequisites.133 According to the first admissibility criterion, the cause of action must be a possible violation by the defendant (who has to be a trader) of its contractual obligations or one of the European or Belgian consumer regulations or acts which are specifically enumerated in the Code of Economic Law.134 Thus, the claim has to be based on at least one of these regulations or acts and the class action procedure only applies to C2B (consumer-to-business) disputes.135 In order to examine the first accessibility criterion, the court will have to engage in a difficult prima facie judgment on the merits of the case.136 According to the second admissibility criterion, the class representative must meet the statutory requirements and must be considered adequate by the court.137 Only three categories of associations can act as class representative (cf. infra, ‘5. Who has standing’). Hence, the Belgian system opts for an associational (ideological)138 plaintiff without private cause of action or grievance against the defendant.139 The adequacy of the representation can prevent potential conflicts of interest.140 According to the third admissibility criterion, the class action has to be superior to

A.-S. Maertens and K. Willems, “Belgische class action. Tien pijnpunten”, NjW 2015, (522) 523, no. 2; T. De Jaeger, “De Belgische class action: 1 voor allen (ongeacht de taal)”, NjW 2016, issue 339, (248) 248; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 7, no. 2.128 H. Boularbah and C. Van Themsche, “L’action en réparation collective ou la “class action” à la belge. Présentation synthétique de la loi du 28 mars 2014”, In Foro 2015, issue 46, (4) 10, no. 16 et seq.; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 14, no. 14 et seq.; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 645, no. 5 et seq.129 The petition must contain evidence that the certification criteria are met, a description of the collective harm, a detailed description of the class, and the reasons for using the opt-in or opt-out system. See Article XVII.42, §1 Code of Economic Law.130 Articles XVII.42-44 Code of Economic Law.131 Article XVII.43, §1 Code of Economic Law. See: S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 125-129.132 Articles XVII.38 and XVII.43, and §2, 3° Code of Economic Law.133 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 125-129; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 7, no. 4 et seq.; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 646, no. 7 et seq.134 Article XVII.36, 1° Code of Economic Law.135 S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 8, no. 4; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 647, no. 8.136 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 125.137 Article XVII.36, 2° Code of Economic Law.138 S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 9, no. 6.139 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 127.140 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 128.

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(i.e. more suitable than) an individual civil action.141 The Court may take into account the following elements: the potential group size, the existence of individual damages in connection with the collective harm, the complexity and judicial efficiency of the class action mechanism, and the legal certainty for the group of consumers on whose behalf the action is brought.142 That way, the court has significant discretionary powers.143 After notification of the certification decision, the consumers can opt in or opt out. Their decision is irrevocable.144

The second phase is a mandatory145 negotiation phase, the goal of which is to reach a collective settlement. In general, out-of-court resolution of mass consumer harms is prioritized and facilitated by the Belgian class action system.146 A settlement is possible in each phase: prior to the legal proceedings,147 during the mandatory negotiation phase148 or during the procedure on the merits of the case.149 If such a settlement is reached it is submitted to the court for approval (homologation).150 If parties have reached a collective settlement before the proceedings, they can jointly request approval.151 Their agreement must contain a minimum of information which is enumerated in the Code of Economic Law.152 The approval is not merely pro forma.153 With the parties’ consent, the court can appoint an accredited mediator to assist them.154

In the absence of a collective settlement, the court will decide on the merits of the case. As a result, this third phase of deciding on the merits of the case will not always be present in each class action case. With regard to the extent and forms of collective redress, any collective settlement or decision on the merits of the case must determine both the extent and forms of that collective redress. The guiding principle remains full and individual compensation and the redress can be in kind or by monetary payment.155

141 Article XVII.36, 3° Code of Economic Law.142 See: S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 129; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 10-11, no. 8.143 F. Danis and F. Lefèvre, “The New Belgian Class Action”, TRNI 2015, issue 2, (139) 141; G. Renier, “La class action ou l’action de groupe en droit bancaire et financier” in V. Colaert and A. Lecocq (eds.), De levenscyclus van bank-, beleggings-, en verzekeringsproducten, Brussel, Larcier, 2014, (199) 227.144 Article XVII.38, §1 in fine Code of Economic Law.145 According to Tzankova, this could prima facie be potentially more effective than the Dutch counterpart provision, although she states that the Belgian mandatory negotiations are often no more than a formaliy in practice. See: I.N. Tzankova, “Collectieve acties in België: een reflectie uit een buurland” in V. Colaert and A. Lecocq (eds.), De levenscyclus van bank-, beleggings-, en verzekeringsproducten, Brussel, Larcier, 2014, (231) 232.146 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 134.147 Article XVII.42, §2 Code of Economic Law.148 Article XVII.45-48 Code of Economic Law.149 Article XVII.56 Code of Economic Law.150 Articles XVII.44-51 Code of Economic Law.151 Article XVII.42, §2 Code of Economic Law.152 Article XVII.45, §3, 2°-13° Code of Economic Law.153 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 135; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 17, no. 18.154 Article XVII.45, §2 Code of Economic Law.155 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 137; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 656, no. 26.

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Finally, the procedure reaches the fourth phase: the enforcement phase. In case of an approved collective settlement and a decision on the merits of the case (establishing the liability if the defendant), the court will appoint a collective claims settler to oversee the execution of the settlement or the decision.156 The court can only appoint attorneys, ministerial public servants or judicial mandataries who are competent in settling claims.157 When the settlement or the decision is fully enforced, the collective claims settler deposits a final report to the court, containing all necessary information for the court to decide on the procedure’s closure.158

Today, the provisions on prohibitory injunctions in the Code of Economic Law largely cover the former rules in various acts.159 The president of the Commercial Court160 has jurisdiction to order the cessation of an act breaching the Code of Economic Law.161 He can also order the cessation of one of the breaches explicitly listed, such as disrespecting a collective bargaining agreement applying to all employers and employees in a particular industry or such as violating the provisions on the driving and rest periods of drivers of vehicles.162 In terms of procedure, one must act as if it concerned summary proceedings.163 This means that the procedural rules of summary proceedings are followed, but the decision taken is one on the merits of the case.164


The introduction of the collective redress procedure has been preceded by years of debate (following some high profile mass cases165) and various proposals.166 Furthermore, the

156 Articles XVII.52-62 Code of Economic Law.157 Article XVII.57, §1 Code of Economic Law.158 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 138; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 20, no. 23.159 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 352, no. 41.160 Against exercisers of a profession, the competent judge for some breaches will be the president of the court of first instance (Article XVII.1, second paragraph Code of Economic Law).161 Article XVII.1 Code of Economic Law.162 Article XVII.2 Code of Economic Law.163 Article XVII.6 Code of Economic Law.164 P. Taelman and P. Thion, “Bundeling van vorderingen”, TPR 2003, (1489) 1528, no. 54.165 E.g. the explosion in Gellingen or the cases concerning Lernout & Hauspie, Fortis or City Bank.166 See: A. Bochon and S. Fehrat, “Law and practice of the collective redress procedure in Belgium”, REDC 2014, issue 3, (511) 511; H. Boularbah and C. Van Themsche, “L’action en réparation collective ou la “class action” à la belge. Présentation synthétique de la loi du 28 mars 2014”, In Foro 2015, issue 46, (4) 4-5, nos. 1-2; D. Dehasse, H. Boularbah and M. Gillis, “Verslag van de lunchcauserie van 15 oktober 2014 “De onderneming voor consument(en): collectieve rechtsvorderingen, vorderingen tot staking, bemiddeling. Is het wetboek van economisch recht een revolutie van de consumentengeschillen?”, DAOR 2015, issue 114, (116) 116; E. Falla, “Le recours collectif en droit de la consommation: présentation de la loi belge” in A. Puttemans (ed.), Le droit de la consommation dans le nouveau Code de droit économique, Brussel, Bruylant, 2014, (117) 118; L. Frankignoul, “L’action en reparation collective ou un mécanisme procédural permettant de prendre le droit au sérieux”, TBBR 2012, issue 5, (194) 197, no. 7; A. Puttemans, “L’introduction d’une forme d’action collective en droit belge” in A. Legendre (ed.), L'action collective ou action de groupe: Se préparer à son introduction en droit français et en droit belge, Brussel, Larcier, 2010, (19) 23-24, nos. 7-8; P. Taelman and S. Voet, “Belgium and Collective Redress: the Last of the European Mohicans” in E. Dirix and Y.-H. Leleu (eds), The Belgian reports at the Congress of Washington of the International Academy of Comparative Law , Brussel, Bruylant,

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introduction of the Belgian class action should not be seen as an isolated act, given some stimuli coming from the European level167 as well as from abroad.168

Prohibitory injunctions exist in various pieces of legislation, but with the introduction of the Code of Economic Law, many rules were consolidated in Title 2 of Book XVII of this Code.169


The scope of the class action technique is limited. The first admissibility prerequisite requires that the claim’s cause concerns a potential breach by a trader of one of its contractual obligations or a potential infringement of one of the listed European Regulations or national laws and their implementing orders.170 The listed provisions are all to be situated in the field of consumer law.171 Hence, the approach is sectoral.172 This limited scope has already been

2011, (305) 327, no. 24 et seq.; P. Van Ommeslaghe, “Une class action en droit belge? Et le droit des obligations?” in E. Van den Haute (ed.), Liber amicorum François Glansdorff et Pierre Legros, Brussel, Bruylant, 2013, (415) 415; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 123 ; S. Voet, “Cultural Dimensions of Group Litigation: The Belgian Case”, Ga.J.Int’l & Comp. L. 2012-2013, Vol. 41, (433) 449-455.167 One may think in particular at the Commission Recommendation 2013/396/EU of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law (OJ 26 July 2013, L 201, 60). See: H. Boularbah and C. Van Themsche, “L’action en réparation collective ou la “class action” à la belge. Présentation synthétique de la loi du 28 mars 2014”, In Foro 2015, issue 46, (4) 5, no. 22; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 123-124; S. Voet, “Europa zet class actions definitief op de agenda”, RW 2013-14, issue 1, 37-39; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 644, no. 2.168 F. Danis and F. Lefèvre, “The New Belgian Class Action”, TRNI 2015, issue 2, (139) 139; F. Danis, E. Fallah and F. Lefèvre, “Introduction aux principes de la Loi relative à l’action en réparation collective et premiers commentaires critiques”, TBH 2014, issue 6, (560) 562; H. Jacquemin, “Les pratiques du marché et la protection du consommateur dans le Code de droit économique”, JT 2014/37-38, n° 6581, (722) 734, no. 34; E. Falla, “Le recours collectif en droit de la consommation: présentation de la loi belge” in A. Puttemans (ed.), Le droit de la consommation dans le nouveau Code de droit économique, Brussel, Bruylant, 2014, (117) 119; E. Pieters, K. Byttebier and R. Feltkamp, “Le Code de droit économique – Survol du contenu et des principales nouveautés”, TBH 2014, issue 4, (327) 366, no. 89; E. Stoop, “Class action”, Ad Rem 2008, issue 5, (29) 32-34; P. Taelman and S. Voet, “Belgium and Collective Redress: the Last of the European Mohicans” in E. Dirix and Y.-H. Leleu (eds), The Belgian reports at the Congress of Washington of the International Academy of Comparative Law , Brussel, Bruylant, 2011, (305) 305-307; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 644.169 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 352, no. 41 and 360, no. 69.170 Article XVII.36, 1° Code of Economic Law.171 H. Boularbah, “Le cadre et les conditions de l’action en réparation collective” in J. Englebert and J.-L. Fagnart (eds.), L’action en réparation collective, Limal, Anthemis, 2015, (9) 10, no. 2 ; H. Boularbah and C. Van Themsche, “L’action en réparation collective ou la “class action” à la belge. Présentation synthétique de la loi du 28 mars 2014”, In Foro 2015, issue 46, (4) 6, no. 3; G. Renier, “La class action ou l’action de groupe en droit bancaire et financier” in V. Colaert and A. Lecocq (eds.), De levenscyclus van bank-, beleggings-, en verzekeringsproducten, Brussel, Larcier, 2014, (199) 202.172 S. Voet, “De rechtsvordering tot collectief herstel: toepassingsgebied, hoedanigheid en ontvankelijkheidsvoorwaarden” in J. Rozie, S. Rutten and A. Van Oevelen (eds.), Class actions, Antwerpen, Intersentia, 2015, (23) 27, no. 4; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 8, no. 5; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 647, no. 9.

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criticized.173 Yet, the Belgian Constitutional Court has ruled that the limited scope (Articles XVII.36, 1° and XVII.37 of the Code of Economic Law) did not constitute a discrimination (related to (collective) access to justice).174

The techniques of connected claims, third party interventions and party representation are of a generic nature.

The general provisions of the Code of Economic Law on the prohibitory injunctions apply to all violations of the Code of Economic Law, but there are also particular rules regarding breaches of particular provisions of the Code, 175 e.g. the infringement of an intellectual property right.176


Associations starting collective actions by way of statutory exception cannot claim damages. Only injunctive (the cessation of an illegal practice) or preventive actions are possible.177 The class action, on the other hand, focusses on compensatory relief.178

Prohibitory injunctions can only lead to the finding of a violation and the order of cessation.179


With regard to the class action, only three categories of organizations can be appointed as class representative: 180

1) a limited number of consumer organizations;2) non-profit organizations meeting certain criteria (a minimum of three years of legal

capacity, ministerial recognition, the activity of the organization must overlap with its statutory aim and must be related to the collective interest concerned);

3) the Consumer Mediation Service.

The latter entity can only bring a class action for the purposes of reaching a collective settlement. In the absence of a settlement, in which case the court will have to assess the merits of the case, a consumer organization will have to take over the procedure.181

173 See, for instance: E. Falla, “Le recours collectif en droit de la consommation: présentation de la loi belge” in A. Puttemans (ed.), Le droit de la consommation dans le nouveau Code de droit économique, Brussel, Bruylant, 2014, (117) 139; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 125-127; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 8-9, no. 5.174 GwH 17 March 2016, nr. 41/2016, 27-31.175 J. Stuyck, “Boeken XVI & XVII. Buitengerechtelijke geschillenregeling van consumentengeschillen en bijzondere rechtsprocedures (i.h.b. vordering tot staking)” in E. Terryn and B. Keirsbilck (eds.), Het Wetboek van economisch recht: van nu en straks?, Antwerpen, Intersentia, 2014, (341) 343, no. 52 and 355, no. 53 et seq.176 Article XVII.14 et seq. Code of Economic Law177 P. Taelman and S. Voet, “Belgium and Collective Redress: the Last of the European Mohicans” in E. Dirix and Y.-H. Leleu (eds), The Belgian reports at the Congress of Washington of the International Academy of Comparative Law, Brussel, Bruylant, 2011, (305) 318, no. 15.178 F. Danis and F. Lefèvre, “The New Belgian Class Action”, TRNI 2015, issue 2, (139) 141; S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 137.179 Article XVII.1-2 Code of Economic Law.180 Article XVII.39 Code of Economic Law.181 Article XVII.40 Code of Economic Law.

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With regard to the prohibitory injunctions, the cessation proceedings can only be initiated by a limited number of claimants: the persons concerned, the competent minister or the director-general of the Directorate-General Enforcement and Mediation of the Federal Public Service Economy, S.M.E.s, Self-employed and Energy, authorities regulating a profession, or certain associations.182


There is no default rule in Belgium regarding the choice for an opt-in or opt-out regime.183 The court will decide on whether the class action will follow the opt-in or opt-out model.184 It will do so in light of the underlying facts and claims of the case, as well as the parties motives and the nature of the collective damage.185 In case physical or moral damages are claimed or for those not usually residing in Belgium, the opt-in model is mandatory.186 The lack of a second opt-in or opt-out round has been criticized.187 In case a collective settlement has been reached before the procedure, the class representative and the defendant will agree on choosing the opt-in or opt-out model.188


The courts in Brussels have exclusive jurisdiction to decide class actions. The legislator centralized the class action procedures in order to develop expertise and specialization.189 In that regard, it makes sense190 that the class representative can freely choose whether to initiate legal proceedings before the court of first instance or the commercial court of Brussels.191 On appeal, the Brussels Court of Appeals has jurisdiction.


The general rules apply so that the class action procedure is financed in the same way as individual procedures. Consequently, all will depend on the financial willingness and power of the class representative.192 In the absence of an exception to the “loser pays" rule193, the

182 Articles XVII.7-8 Code of Economic Law.183 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 132.184 Articles XVII.38 and XVII.43, §2, 3° Code of Economic Law.185 S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 11, no. 9.186 Articles XVII.38, §1, 2° and XVII.43, §2, 3° Code of Economic Law.187 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 133; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 12, no. 10.188 Article XVII.42, §2 Code of Economic Law.189 H. Boularbah and C. Van Themsche, “L’action en réparation collective ou la “class action” à la belge. Présentation synthétique de la loi du 28 mars 2014”, In Foro 2015, issue 46, (4) 10, no. 15; G. Renier, “La class action ou l’action de groupe en droit bancaire et financier” in V. Colaert and A. Lecocq (eds.), De levenscyclus van bank-, beleggings-, en verzekeringsproducten, Brussel, Larcier, 2014, (199) 211.190 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 129-130; S. Voet, “Samen sterk: Belgische consumenten class action is een feit”, DCCR 2014, issue 105, (5) 13, no. 12; S. Voet and B. Allemeersch, “De rechtsvordering tot collectief herstel: een Belgische class action voor consumenten”, RW 2014-15, issue 17, (643) 652, no. 20.191 Article XVII.35 Code of Economic Law.192 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 140.193 See Articles 1017 et seq. Judicial Code

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class representative takes a financial risk when initiating a class action, because he can end up paying the costs and expenses.194 No specific rules regarding the compensation or remuneration of the class representative can be found in Code of Economic Law, apart from Article XVII.45, §3, 8°, which states that a collective settlement must contain the costs to be paid to the class representative and that these cannot exceed the actual costs borne by him.195 As far as the Consumer Mediation Service is concerned, its public nature implies taxpayer funding.196

194 E. Falla, “Le recours collectif en droit de la consommation: présentation de la loi belge” in A. Puttemans (ed.), Le droit de la consommation dans le nouveau Code de droit économique , Brussel, Bruylant, 2014, (117) 149.195 F. Danis and F. Lefèvre, “The New Belgian Class Action”, TRNI 2015, issue 2, (139) 148.196 S. Voet, “Consumer Collective Redress in Belgium: Class Actions to the Rescue?”, European Business Organization Law Review 2015, issue 1, (121) 140.

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Annex I. Schematic representation of a number of important ADR entities

1) Arbitration2) Reconciliation3) Mediation4) Ombudsmen (1)5) Ombudsmen (2)

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ArbitrationChamber of reconciliation,

arbitration and mediation regarding real estate197

Travels Conciliation Board vzw198 Furniture Conciliation Board vzw199

Conciliation Board Consumers – Textile caretakers CACET vzw200

Brief description

Private initiative of lawyers and technical experts to handle disputes about real estate more adequately

Private initiative of consumer organizations and professional associations in the travel

sector

Private initiative aiming at a fair settlement of disputes between consumers and

furniture shops

Commission dealing with disputes in the textile care sector

Stand-alone initiative? Stand-alone initiative

Scope Disputes concerning real property Disputes concerning travel Disputes between consumers and furniture traders

Disputes concerning wrong treatment or loss by textile care business

Remedies Arbitral decision can entail injunctive, declaratory and/or compensatory remedies

197 See: http://www.ccai.be/.198 See: http://www.clv-gr.be/.199 See: http://www.navem.be/?action=onderdeel&onderdeel=8&titel=geschillenco.200 See: http://www.fbt-online.be/.

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Standing

Any party on the condition of a joint request for arbitration

or any party in case of a contractual arbitration clause

Anyone in a dispute with a travel agent or organizer applying the general conditions of the commission, within certain time limits and after having tried to reach an amicable

settlement.For some disputes, the commission is not

competent.201

A consumer harmed by a furniture trader using the general conditions and model agreement of the commission or such a trader himself (but the commission’s competence is not exclusive)

Consumers or textile caretakers if the business is a member of the

FBT, an amicable settlement has been proposed and the claim is worth no more than €1859,20

Opt-in or opt-out

Opt-in because all parties entering the arbitration must

agree to it (or have agreed to a contractual clause)

Each victim must initiate the arbitration procedure.

Opt-in because furniture traders need to choose for the system of “Meubelwaarborg”202 and each

consumer has to contact the commission

Opt-in because textile care businesses need to become a

member and each complainer has to contact the commission

Case management

Articles 1676 et seq. Judical Code apply (general

provisions on arbitration), save contractual deviations

Articles 1676 et seq. Judical Code apply (general provisions on arbitration), save

deviations in the commission’s regulationNo particular rules on case management Judicial Code applies by way of

supplement

Financing

€400 (excl. VAT) for opening new record€140 (excl. VAT) per hour per arbitrator

Arbitral cost of €50 (claims ≤ €1,000) or €75 (claims > €1,000)Recognized, supported and subsidized by the StateMembership contributions of consumer organizations and professional associations

Complaint-filing fee of €100 (member of Navem or member of consumer organization associated with the commission) or €150 (non-members) (fee is (partly) reimbursed to winning party)Membership contributions of consumer organizations and professional associations which are a member of the commission

Consumers pay €20 (member of certain associations) or €40 (non-member) for a claim < €800; and €40 (member of certain associations) or €60 (non-member) for a claim > €800.203 Textile care businesses pay €40 (claim < €800) or €60 (claim > €800)

201 For instance, complains concerning physical harm or in case of non-contractual disputes.202 Translation: “Furniture Guaranty”.203 If the business is put completely in the wrong, these costs are reimbursed.

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Reconciliation Chamber of reconciliation, arbitration and mediation regarding real estate204

Travels Conciliation Board vzw205 Reconciliation Commission Automoto206 Reconciliation Commission

Construction vzw207

General description

Private initiative of lawyers and technical experts to handle disputes about real estate

more adequately

Private initiative of consumer organizations and professional associations in the travel sector

Qualified entity for out-of-court settlement of disputes concerning the

selling or guaranty of vehicles

Private initiative to settle technical construction disputes cheaply,

professionally and swiftly


Scope Disputes concerning real propertyContractual disputes or claims

concerning the (non-) realization of a trip

Consumer disputes about the (non-) performance of a sales agreement of guaranty related situation regarding a new or second-hand vehicle against a professional established in Belgium,

affiliated with a founding professional organization accepting the general conditions of the Reconciliation

Commission Automoto

Technical disputes

RemediesThe parties themselves reach an agreement if the reconciliation is successful. No one else

can impose a remedy.

The parties themselves reach an agreement if the reconciliation is successful. No one else can

impose a remedy.

The parties themselves reach an agreement if the reconciliation is

successful. Only non-binding advice can be given by other parties.

Either the part reach a settlement themselves or the technical expert drafts a binding technical report

204 See: http://www.ccai.be/.205 See: http://www.clv-gr.be/.206 See: http://verzoeningautomoto.be/.207 See: http://www.bouwverzoening.be/.

27

Standing

Any party on the condition of a joint request for reconciliation

or any party in case of a contractual reconciliation clause

Anyone with a contractual dispute or claim concerning the (non-) realization of a trip, booked with a Belgian travel agent and/or

organizer. All parties concerned must agree in writing, the travel agent or organizer must

apply the general conditions of the commission. There are time limits and one

must have tried to reach an amicable settlement.

After having tried to settle, elk every buyer (natural person) who bought a new or second-hand vehicle for non-professional ends, if it falls within the

scope of the commission

Parties in a technical208 dispute between a consumer and a contractor/architect involved in a private construction or renovation project

Opt-in or opt-out

Opt-in because all parties to the dispute must agree to try to

reconcile (or have agreed to a contractual clause)

The procedure is based on the voluntary cooperation of the parties concerned

Every person needs to file an individual complaint

Opt-in, because all parties must agree to the reconciliation process

Case management No particular rules No particular rules Use of a mediator Only technical, no legal expertise and binding

technical report

Financing

€400 (excl. VAT) for opening new record

€95 (excl. VAT) per hour per reconciler

€50 (incl. VAT) per traveller€75 (excl. VAT) per travel agent/organizer

Recognized, supported and subsidized by the State

Membership contributions of consumer organizations and professional associations

Financial contribution of €80 per party; additional (expertise related) costs require the parties’ consent

Not subsidized but funded by founding organizations

Contribution in kind by members, annual subsidy by the State and membership

contributionsCosts of expert investigation are €200 (excl. VAT) per party per reconciler/appraiser till

the first inspection and afterwards a fee of €75 per hour (excl. VAT), relocation costs of €1 per km (excl. VAT) and secretarial costs of

€31 per hour (excl. VAT)

208 The dispute has to be related to flaws in the design or performance of the work.

28

Mediation Chamber of reconciliation, arbitration and mediation regarding real estate 209 Belgian Center for Conflict Management210,211 Mediation Platform212

General descriptionPrivate initiative of lawyers and technical

experts to handle disputes about real estate more adequately

Center specialized in conflict management and alternative dispute resolution


Scope Disputes concerning real property Not sectoral

Commercial disputes related to consumer goods, general services to the consumer, postal services and electronic

communication, transport services, leisure services, energy and water, health, education, and financial services

RemediesA mediator only facilitates but imposes

no remedy. Only the parties can reach an agreement.

Remedy depends on the ADR method but apart from arbitration it is always up to the parties to

agree on a solution

A mediator only facilitates but imposes no remedy. Only the parties can reach an agreement.

209 See: http://www.ccai.be/.210 See: http://www.cebegeco.be/nh/welkom.211 Despite the fact that the Center is specialized in various types of alternative dispute resolution, we focus on mediation because the Center’s partners all are to be situated in that field.212 See: http://economie.fgov.be/nl/geschillen/Consumentengeschillen/Belmed/wat/mogelijke_alternatieve_geschillenregeling/bemiddeling/bemiddelingsplatform/#.V-E23yGLRMw.

29

Standing Any party on the condition of a joint request for mediation or any party in case of a contractual mediation clause Any party Any party to a dispute within the scope of the

platform

Opt-in or opt-out Opt-in because all parties entering the mediation must agree to it (or have agreed to a contractual clause) Each party needs to contact the Center Each party needs to contact the platform

Case management Articles 1724 et seq. Judical Code apply (general provisions on mediation)

Articles 1724 et seq. Judical Code apply (general provisions on mediation)

Articles 1724 et seq. Judical Code apply (general provisions on mediation)

Financing €400 (excl. VAT) for opening new record€95 (excl. VAT) per hour per mediator

Fee of €100 per hour (excl. VAT), typewriting costs of €10 per page and relocation costs of €0,50 per

km

Fee of €150 per hour (excl. VAT) and relocation costs of €0,50 per km; to be divided

amongst parties

Standing Any party on the condition of a joint request for mediation or any party in case of a contractual mediation clause Any party Any party to a dispute within the scope of the

platform

30

Ombudsmen(1)

The Ombudsman in financial conflicts (Ombudsfin)213

The Office of the Ombudsman for insurances214 The Office of the Ombudsman for the Postal Sector 215

General description Qualified entity for out-of-court settlement of financial disputes

Qualified entity for out-of-court settlement of insurance related disputes

A federal independent public service to mediate in disputes in the postal sector

Stand-alone initiative? Stand-alone initiative Stand-alone initiative Part of the reform of certain economic public companies in Act of 21st of March 1991

Scope

For a private person:dispute between a consumer and financial

institute affiliated to Ombudsfin/Febelfin and regarding the performance of a sales or service agreement or concerning the use of a product,

within the context of his private banking business and financial transactions

For a self-employed person or business:it should regard a commercial credit/loan or

cross border payment

All disputes between a consumer (private person, self-employed person, trader…) and

an insurance company or registered insurance agent concerning the application of an existing

insurance contract to which Belgian law is applicable

All disputes between a company and a customer/consumer concerning national and international items with a maximum weight of 30 kg which regard the activities of Bpost (except

Bpost bank) or the products it subcontracts; or postal activities of other companies which are active on the Belgian

market

RemediesIt is up to the parties to reach a settlement. The Ombudsman only mediates gives a non-binding

recommendation

It is up to the parties to reach a settlement. The Ombudsman only mediates and gives a non-

binding recommendationIt is up to the parties to reach a settlement

213 See: http://www.ombudsfin.be/nl.214 See: http://www.ombudsman.as/nl/home/index.asp.215 See: http://www.omps.be/.

31

Standing

Private person, self-employed person or business against a financial institution affiliated to Ombudsfin/Febelfin after having complaint to the institution’s competent complaint

service or mediator without any (past or present) legal proceedings and within the scope of Ombudsfin

Everyone within the scope of OmbudsmanEveryone as long as the problem relates to a company

active on the Belgian postal market and a prior complaint was introduced

Opt-in or opt-out Each private person or entity needs to introduce an individual complaint

Each person needs to introduce an individual complaint in writing

Each person needs to introduce an individual complaint in writing

Case management Online platform My Ombudsfin to keep track of your file No particular rules

Financing Free of charges for users, Ombudsfin is financed by the financial institutions which are a member

Free of charges for users, costs are borne by the various actors in the sector

Free of charges for users, costs are borne by the postal sector

32

Ombudsmen

(2)Consumer Mediation Service 216 The Ombudsman for train travellers

(Ombudsrail)217The Office for the Ombudsman

for Telecommunication218The Office of the Ombudsman for

Energy219

General description

Independent public service which informs consumers and companies about their rights and obligations,

particularly about the options available for ADR of consumer disputes

Ombudsman for matters regarding transport and infrastructure services

used by travelers and users

Qualified entity for out-of-court settlement concerning

telecommunication which works in fact as an appeal body

A federal independent public service to answer questions and

mediate in disputes between power companies and final

consumers

Stand-alone initiative? Enacting of the Code of Economic Law

Part of the reform of certain economic public companies in Act of 21st of

March 1991Not part of a larger reform

Scope Applications for alternative dispute resolution of a consumer dispute

Complaints from travelers or users regarding the service of rail operators

or railway companies

Any complaints from end-users relating to the activities of

telecommunicationsundertakings220

Complaints of final consumers regarding the activities of power

companies

Remedies

It passes it to another qualified entity competent in the matter or by lack of such entity intervenes itself. In the

latter case, the parties try to reach a settlement. The Ombudsman only mediates and gives a non-binding

recommendation

It is up to the parties to reach a settlement. The Ombudsman only mediates and gives a non-binding

recommendation


recommendation


recommendation

216 See: http://www.consumerombudsman.be/en.217 See: http://www.ombudsmanrail.be/.218 See: http://www.ombudsmantelecom.be/.219 See: http://www.ombudsmanenergie.be/nl.220 A telecommunications undertaking is defined as “any operator; any person compiling, selling or distributing a directory; any person providing a directory enquiry service; any person operating electronic communications systems; any person providing encryption services to the public and any person offering other activities relating to electronic communications; within the meaning of the Electronic Communications Act of 13 June 2005”.

33

Standing Proof of this first contact with the company

Every train traveler or user of the railway infrastructure if the complaint relates to the

activities of (a branch of ) a railway company active on Belgian territory after having

contacted the company first. For international passenger trains, the product or service must be bought from a Belgian railway company

After having approached the relevant telecommunications

companies

Every final consumer after having contacted the company to try to settle

Opt-in or opt-outEach individual needs to introduce an individual

complaint

Each individual needs to introduce an individual complaint

Each individual needs to introduce a written complaint

Opt-in: in case of intervention by an association or organization for multiple final consumers, the Ombudsman will deal with it on an individual basis, requiring a mandate of

each final consumer

Case management No particular rules

Financing

Free of charges for users, subsidized by the Federal

Government and contributions by the

ombudsmen represented in the Management

Committee

Free of charges for users

Free of charges for users, paid for by the Belgian Institute of

Postal Services and Telecommunications (through

annual fees paid by certain undertakings)

Free of charges for users, financed through “ombuds contributions” by the power

companies

34

B. Case studies

This report contains two categories of case studies. The first category regards class actions, whilst the second category regards cases studies by ombudsmen. Both categories will be dealt with in that order. After the ombudsmen case studies, an overview of some important data is presented of the most important ombudsmen on the basis of their annual reports.

B.1 Class actions221

1) Gellingen (Ghislenghien)

The case of Gellingen (in French: Ghislenghien) concerns a gas explosion on 30 July 2004.222 The setting concerns a building site for a new construction factory on behalf of the public limited company Husqvarna Belgium (formerly Diamant Boart), master builder, in the economic activity zone of Ath (Ghislenghien). The building site was crossed by two underground gas pipes containing natural gas under high pressure, which ran next to each other over a distance of approximately 460 meters. The gas pipes were exploited by the public limited company Fluxys (formerly Distrigaz), transporting the gas. The building had to be constructed at a distance from the gas pipes, but the surroundings – particularly the roads and parking places – had to be installed above the pipe lines or close to them. During ground stabilization works involving the use of a Bomag engine, the rotor of the engine violently hit an obstacle, i.e. one of the gas pipes. The result of the damages gas pipe was a gas leak, which in turn led to an explosion. On the day of the explosion, in the early morning, the workers on site noticed a suspicious smell. The fire brigade arrived about an hour and a half later. Eventually, the ground started to tremble. A gas cloud emerged and caught fire. 24 people were killed, many more were injured and harmed.

Criminal proceedings were initiated. No less than 23 (physical and legal) persons appeared as defendant before the chambers (Raadkamer/ Chambre du Conseil) of Tournai. Afterwards, 14 defendants were referred to the magistrates’ court (Correctionele Rechtbank/ Tribunal correctionnel), including Husqvarna Belgium, Fluxys, the legal person responsible for elaborating the project and supervising the execution, the architect, the security and health

221 Besides the class actions discussed in this report, other class actions are in the pipeline. Test-Achats plays the class action card to put pressure on companies to change their policies or actions. One could note the example of a case involving Proximus (https://www.proximus.com/en/group/profile), a telecommunications company. The service Proximus TV new entails renting a decoder instead of costumers buying one, but Test-Achats believes that this implies a hidden increase in the tariff to be paid. It threatens to initiate a class action if Proximus doesn’t meet its demands within 15 days. See: S. Rousseau, “Test-Aankoop dreigt met groepsvordering tegen Proximus” (15 September 2016), http://www.tijd.be/ondernemen/telecom/Test_Aankoop_dreigt_met_groepsvordering_tegen_Proximus.9809346-3128.art?ckc=1&ts=1474884928.222 See for a statement of the facts: F. Lagasse and M. Palumbo, “Ghislenghien: catastrophe technologique au carrefour du droit pénal et du droit civil”, Droit pénal de l’entreprise 2013, issue 4, (37) 37-40; P. Moreau, “Extraits du jugements du 22 février 2010 du Tribunal correctionnel de Tournai dans l’affaire de la catastrophe de Ghislenghien – note introductive”, Revue pratique de l’immobilier 2010, issue 1, (215) 215; D. Philippe, “La responsabilité civile en matière d’énergie – Volume 2: L’affaire de Ghislenghien, l’indemnisation du client final envers le gestionnaire de réseau et la responsabilité civile nucléaire” in X., Responsabilités. Traité théorique et pratique, Titre III, Livre 32bis, Diegem, Kluwer, 2015, (1) 8, no. 107; J.-P. Renard, “Observations. Arrêt Ghislenghien”, T.Aann. 2012, issue 1, (35) 35 et seq.

35

http://www.tijd.be/ondernemen/telecom/Test_Aankoop_dreigt_met_groepsvordering_tegen_Proximus.9809346-3128.art?ckc=1&ts=1474884928

http://www.tijd.be/ondernemen/telecom/Test_Aankoop_dreigt_met_groepsvordering_tegen_Proximus.9809346-3128.art?ckc=1&ts=1474884928

https://www.proximus.com/en/group/profile

coordinators as well as the company contractually responsible for the security and health coordination. The principal charges were unintentional homicide and unintentional assault and battery. By means of the partie civile technique (cf. supra), about 600 persons became a civil party. In the first instance, most defendants were acquitted (including Husqvarna Belgium and Fluxys) and a few others got a suspension of the sentence. The Public Prosecutor (as well as some defendants and civil parties) appealed to the Court of Appeal of Mons so that 14 defendants appeared before the Court of Appeal. On appeal, Husqvarna Belgium and Fluxys were fined, while other defendants were either acquitted or got a suspension of the sentence.223

Within the setting of this study, our interest lies with the technique used by the Court of Appeal of Mons. When dealing with the civil claims, criminal judges generally appoint doctors as expert witnesses to give an estimate of the injuries. The Court of Appeal of Mons noted the large number of civil parties and the need for medical expert reports. It adopted a liberal interpretation of the rules on court-appointed expert witnesses and established an expert committee.224 Furthermore, the court appointed – apart from the magistrate supervision the expert operations – two “experts coordinateurs et conciliateurs” (coordinating and reconciling experts, so-called special masters225) who (a) had to coordinate the expert operations, (b) operated as intermediaries between the court and the experts and (c) had to work towards global settlements.226 The coordinating experts succeeded in their intentions.227 The lawyers of Fluxys (the deep-pocket defendant)228 and those of the victims ultimately reached an agreement. The amounts were kept secret, although Fluxys has set aside 10 million euros to compensate the victims.229

223 Mons (15th ch.) 28 June 2011, No. 2010/H/130, Ius & actors 2012, issue 1, 113 et seq. and T.Aann. 2012, issue 1, 12 et seq., also available online: http://corporate.skynet.be/rt002598/Arret28062011.pdf.224 D. Mougenot, “Une expertise sur mesure pour Ghislenghien” (noot onder Mons (15th ch.) 28 June 2011), Ius & Actores 2012, issue 1, (121) 121-122, nos. 2-3; X, “Fluxys condamné et ‘préoccupé’” (29 June 2011), http://deredactie.be/cm/vrtnieuws.francais/infos/1.1054844.225 See: D. Rosenberg, “Of End Games and Openings in Mass Tort Cases: Lessons from a Special Master”, B.U. L. Rev. 1989, issue 69, 695 et seq. and W.D. Brazil, “Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?”, U. Chi. L. Rev. 1986, issue 53, 394 et seq. Comp. in the US: Rule 53 Fed.R.Civ.P.226 D. Mougenot, “Une expertise sur mesure pour Ghislenghien” (noot onder Mons (15th ch.) 28 June 2011), Ius & Actores 2012, issue 1, (121) 122, no. 5.227 S. Voet, “Mechanisms for resolving mass problems: a Belgian perspective” at the Rüschlikon (Zürich, Switzerland) Conference "Building effective markets - the role of an integrated legal system” of 29 and 30 January 2013, slide 10, available at https://www.law.ox.ac.uk/sites/files/oxlaw/voet.pdf. Also see the conference summary at p. 15: https://www.law.ox.ac.uk/sites/files/oxlaw/executive_summary.pdf.228 S. Voet, “Public enforcement and A(O)DR as mechanisms for resolving mass problems: a Belgian perspective” in C. Hodges and A. Stadler (eds.), Resolving Mass Disputes: ADR and Settlement of Mass Claims, Cheltenham, Edward Elgar, 2013, (270) 283.229 Rédaction en ligne, “Catastrophe de Ghislenghien: les victimes enfin indemnisées” (3 February 2012), http://www.nordeclair.be/292403/article/regions/tournai/actualite/2012-02-03/catastrophe-de-ghislenghien-les-victimes-enfin-indemnisees.

36

http://www.nordeclair.be/292403/article/regions/tournai/actualite/2012-02-03/catastrophe-de-ghislenghien-les-victimes-enfin-indemnisees

http://www.nordeclair.be/292403/article/regions/tournai/actualite/2012-02-03/catastrophe-de-ghislenghien-les-victimes-enfin-indemnisees

https://www.law.ox.ac.uk/sites/files/oxlaw/executive_summary.pdf

https://www.law.ox.ac.uk/sites/files/oxlaw/voet.pdf

http://deredactie.be/cm/vrtnieuws.francais/infos/1.1054844

http://corporate.skynet.be/rt002598/Arret28062011.pdf

2) Thomas Cook Airlines Belgium

Flight HQ 1509 of the international travel organization Thomas Cook Airlines Belgium was delayed on 23 March 2015 by 8 hours due to a technical incident. The airplane collided with an ambulance lift on the tarmac of Tenerife South, which was requested to move an ill passenger. All passengers were informed and coupons for meals and drinks were handed out but it took several hours before they could fly back to Brussels. The airplane had been damaged by the collision so that the passengers had to wait several hours before flying back to Brussels. Almost 200 passengers for Brussels were hindered.230 The Consumer Organization Test-Achats231 believes that compensation is due on the basis of Article 7 of the Regulation (EC) No 261/2004.232 Test-Achats argues that Thomas Cook has not compensated all the passengers, wrongfully invoking exceptional circumstances233.234 Test-Achats holds Thomas Cook liable235 and introduced a class action against the travel organization.236 The case against Thomas Cook is the first class action ever to be introduced in Belgium.237 Thomas Cook had nevertheless been on speaking terms with Test-Achats on the compensation issue238 and arguably contacted all passengers of that particular flight, some of which already received a “commercial gesture”.239

The petition was filed on 2 October 2015 before the Dutch-speaking court of first instance of Brussels (2nd chamber) who rendered a judgment on the admissibility of the class action on 4

230 X, “Groepsvordering tegen Thomas Cook: wat u moet weten” (29 June 2016) https://www.test-aankoop.be/geld/kredietkaarten/nieuws/eerste-groepsvordering-in-belgie-tegen-thomas-cook.231 https://www.test-aankoop.be/.232 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ 17 February 2004, L 46, 1. See further, the European Commission’s website on passenger rights: http://ec.europa.eu/transport/themes/passengers/air/.233 See for an unofficial list of what this term entails, drafted after the meeting of the National Enforcement Bodies in 2013: http://ec.europa.eu/transport/themes/passengers/air/doc/neb-extraordinary-circumstances-list.pdf.234 X, “Test-Aankoop dreigt met collectieve vordering tegen Thomas Cook Airlines” (2 July 2015), https://www.test-aankoop.be/action/pers%20informatie/persberichten/2015/thomas-cook.235 BELGA, “Test-Aankoop dreigt met groepsvordering tegen Thomas Cook” (2 July 2015), http://www.hbvl.be/cnt/dmf20150702_01759487/test-aankoop-dreigt-met-groepsvordering-tegen-thomas-cook.236 I. Mundell, “ First Belgian class action targets Thomas Cook” (2 October 2015), http://www.xpats.com/first-belgian-class-action-targets-thomas-cook.237 A. Bochon and S. Fehrat, “Law and practice of the collective redress procedure in Belgium”, REDC 2014, issue 3, (511) 525; F. Willems, “Thomas Cook heeft eerste groepsvordering in België aan de broek” (2 October 2015), http://deredactie.be/cm/vrtnieuws/binnenland/1.2458514; F. Van Garderen, “'Test-Aankoop' klaar voor groepsvordering tegen NMBS” (10 October 2015), http://www.demorgen.be/economie/-test-aankoop-klaar-voor-groepsvordering-tegen-nmbs-b35a5d75/; X, “Première en Belgique: Test-Achats attaque en justice Thomas Cook pour 198 passagers restés bloqués 8h à Tenerife” (2 October 2015), http://www.rtl.be/info/belgique/economie/premiere-en-belgique-test-achats-attaque-en-justice-thomas-cook-pour-198-passagers-restes-bloques-8h-a-tenerife-759118.aspx; L. Lambrecht, “La première "class action" belge vise Thomas Cook” (2 October 2015), http://www.lalibre.be/economie/libre-entreprise/la-premiere-class-action-belge-vise-thomas-cook-560d7ba135700fb92f5a67c7.238 JVT and BVB, “Overwinning voor passagiers als Thomas Cook betaalt” (2 October 2015), http://www.standaard.be/cnt/dmf20151002_01898417. Although Test-Aankoop claims to have been unaware of any compensations made: X, “Volgens Thomas Cook kregen passagiers met vertraging wél compensatie” (2 October 2015), http://www.nieuwsblad.be/cnt/dmf20151002_01898741.239 E. Cleeren and G. Meeussen, “Thomas Cook betaalt toch compensatie” (2 October 2015), http://thomascookairlinesbelgium-newsroom.condor.com/nl/int/persmededeling/thomas-cook-airlines-reacts-on-message-from-test-aankoop/.

37

http://thomascookairlinesbelgium-newsroom.condor.com/nl/int/persmededeling/thomas-cook-airlines-reacts-on-message-from-test-aankoop/

http://thomascookairlinesbelgium-newsroom.condor.com/nl/int/persmededeling/thomas-cook-airlines-reacts-on-message-from-test-aankoop/

http://www.nieuwsblad.be/cnt/dmf20151002_01898741

http://www.standaard.be/cnt/dmf20151002_01898417

http://www.lalibre.be/economie/libre-entreprise/la-premiere-class-action-belge-vise-thomas-cook-560d7ba135700fb92f5a67c7

http://www.lalibre.be/economie/libre-entreprise/la-premiere-class-action-belge-vise-thomas-cook-560d7ba135700fb92f5a67c7

http://www.rtl.be/info/belgique/economie/premiere-en-belgique-test-achats-attaque-en-justice-thomas-cook-pour-198-passagers-restes-bloques-8h-a-tenerife-759118.aspx

http://www.rtl.be/info/belgique/economie/premiere-en-belgique-test-achats-attaque-en-justice-thomas-cook-pour-198-passagers-restes-bloques-8h-a-tenerife-759118.aspx

http://www.demorgen.be/economie/-test-aankoop-klaar-voor-groepsvordering-tegen-nmbs-b35a5d75/

http://www.demorgen.be/economie/-test-aankoop-klaar-voor-groepsvordering-tegen-nmbs-b35a5d75/

http://deredactie.be/cm/vrtnieuws/binnenland/1.2458514

http://www.xpats.com/first-belgian-class-action-targets-thomas-cook

http://www.xpats.com/first-belgian-class-action-targets-thomas-cook

http://www.hbvl.be/cnt/dmf20150702_01759487/test-aankoop-dreigt-met-groepsvordering-tegen-thomas-cook

https://www.test-aankoop.be/action/pers%20informatie/persberichten/2015/thomas-cook

http://ec.europa.eu/transport/themes/passengers/air/doc/neb-extraordinary-circumstances-list.pdf

http://ec.europa.eu/transport/themes/passengers/air/doc/neb-extraordinary-circumstances-list.pdf

http://ec.europa.eu/transport/themes/passengers/air/

https://www.test-aankoop.be/

https://www.test-aankoop.be/geld/kredietkaarten/nieuws/eerste-groepsvordering-in-belgie-tegen-thomas-cook

April 2016.240 According to Thomas Cook, the compensations had already been paid so that the claim is without an object. The Court stated that, in the certification phase, it could find that the claim was without an object if it was prima facie manifestly clear that de introduced claim had already been fully met so that the class representative could not dispute that finding. The Court acknowledged the existence of payments being made but it was still possible to dispute that all passengers actually had been paid. As a result, the claim was not without an object. The claim was found to be admissible, since all admissibility criteria were met. One of those was the superiority of the class action, i.e. that the class action is more efficient than other procedures at the individual claimants’ disposal. The Court found a class action justified on the basis of the following elements:

- the number of potential class members (all passengers of that particular flight);- the small amount of compensation, so that the costs of an individual procedure do not

outweigh the desired compensation;- Thomas Cook’s refusal in other individual cases of delay to pay so that other

individual procedures, also in view of the small amounts, are and have been discouraged;

- the loss being identical to all passengers and the resulting identical claim;- the advantage for the legal system to have but one procedure instead of multiple

procedures;- the decreasing risk of contrariety and the increasing legal certainty if one decision is

made for all individual passengers.

The Court also decided whether to adopt an opt-in or an opt-out system. It argued that one should opt for the best preservation of the consumer’s interest in the particular case of loss. It reasons on the basis of an “awareness prong”.241 An opt-in system requires the consumer to actively opt-in. If class members are aware that they have been damaged and that they could claim compensation, the interest of the individual victims is safeguarded by the opt-in system. The opt-out system is, according to the Court, preferred when the consumer is unaware of his loss or of his entitlement (to compensation). Since the consumers in this case are most likely aware of their loss (i.e. the delay) and able to determine whether they are entitled to compensation or not, the opt-in model is chosen for consumers usually residing in Belgium. For others, the opt-out model is mandatory.242

The decision of 4 April 2016 was published on the website of the Federal Public Service Economy, S.M.E.s, Self-Employed and Energy243 and in the Official Gazette.244 The period to opt in has expired on 10 August 2016 and the procedure is currently in the negotiation phase.

240 Rb. Brussel (Nl.) (22nd ch.) 4 April 2016, A.R. 2015/4019/A, freely accessible at the website of the Federal Public Service Economy, S.M.E.s, Self-Employed and Energy: http://economie.fgov.be/nl/consument/rechtsvordering_collectief_herstel/test-aankoop_Thomas-Cook/#.V-oxXyGLRMy.241 As discussed by Stefaan Voet at the Expert Seminar Principles for Collective Actions: When EU and Nation-State Principles Collide, organized by Jasminka Kalajdzic & Stefaan Voet on 16 September 2016 at Leuven, Belgium.242 Article XVII.38, §1, 2° Code of Economic Law.243 http://economie.fgov.be/nl/consument/rechtsvordering_collectief_herstel/test-aankoop_Thomas-Cook/#.V-o5_SGLRMz.244 Official Gazette 28 June 2016, Numac 2016705997.

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http://economie.fgov.be/nl/consument/rechtsvordering_collectief_herstel/test-aankoop_Thomas-Cook/#.V-o5_SGLRMz

http://economie.fgov.be/nl/consument/rechtsvordering_collectief_herstel/test-aankoop_Thomas-Cook/#.V-o5_SGLRMz

http://economie.fgov.be/nl/consument/rechtsvordering_collectief_herstel/test-aankoop_Thomas-Cook/#.V-oxXyGLRMy

http://economie.fgov.be/nl/consument/rechtsvordering_collectief_herstel/test-aankoop_Thomas-Cook/#.V-oxXyGLRMy

3) NMBS

In the course of 2015, there were 8 strike days by different railway unions, causing inconvenience to train travelers.245 Hampered train travelers demanding compensation from the Belgian National Railway Company (NMBS-SNCB) were faced with a complicated procedure to receive compensation or were not compensated at all. Test-Achats first gave the NMBS a month to propose a settlement, e.g. the simplification of the compensation procedure and the payment of a compensation to the hindered train travelers, after serving notice on the NMBS.246 No settlement was proposed.247 Consequently, Test-Achats filed a class action petition on 23 November 2015 before the commercial court of Brussels. The first hearing took place on 10 December, where Test-Achats pleaded for an opt-out system.248 A second session took place on 7 April 2016.249 Besides compensation, Test-Achats demanded a simplification of the compensation procedure used by the NMBS, accompanied by a clear information campaign, the possibility of a cash compensation and to attach more value to the Ombudsman for train travelers.250

Test-Achats created a special website (www.uhebtrechten.be / www.vousavezdesdroits.be)251 for troubled train travelers to register in order to join the claim for compensation and to stay informed of the further steps in the procedure.252 Approximately 44,000 people registered, which is probably the result of Test-Achats’s efforts to inform people about the class action, for instance by handing out flyers.253

According to Test-Achats, their action has already led to a change in the policy of the NMBS.254 In contrast with earlier announcements, the NMBS would have been willing to compensate season ticket holders (not travelers who purchased their ticket after announcement of the strike days) for the strike days of 6 and 7 January 2015. The NMBS

245 KLD, “NMBS zit dit jaar al aan 8 stakingsdagen” (20 October 2015), http://www.standaard.be/cnt/dmf20151020_01928805.246 A. Hope, “Test-Aankoop files Belgium's first-ever class action suit – against NMBS” (28 May 2015), http://www.flanderstoday.eu/current-affairs/test-aankoop-files-belgiums-first-ever-class-action-suit-against-nmbs; A. Hope, “Test-Achats files first-ever class action suit against SNCB” (28 May 2015), http://www.xpats.com/test-achats-files-first-ever-class-action-suit-against-sncb; Z. Saerens, “Test-Aankoop wil NMBS voor de rechter slepen” (27 May 2015), http://deredactie.be/cm/vrtnieuws/binnenland/1.2351777.247 BELGA, “Test-Aankoop gaat door met groepsvordering tegen NMBS” (30 June 2015), http://deredactie.be/cm/vrtnieuws/binnenland/1.2380281; X, “Groepsvordering van Test-Aankoop tegen NMBS: de procedure wordt vervolgd” (30 June 2015), https://www.test-aankoop.be/action/pers%20informatie/persberichten/2015/nmbs-procedure.248 X, “Eerste zitting over de class action van Test-Aankoop tegen de NMBS” (9 December 2015), https://www.test-aankoop.be/action/pers%20informatie/persberichten/2015/eerste-zitting-class-action-nmbs.249 A. Bochon and S. Fehrat, “Law and practice of the collective redress procedure in Belgium”, REDC 2014, issue 3, (511) 526.250 X, “Treinstaking? Reizigers, laat ons samen opeisen wat ons toekomt!” (9 October 2015), https://www.test-aankoop.be/mobiliteit/auto-s/nieuws/u-hebt-rechten/onze-eisen.251 One may notice the similarity with the Dutch website concerning a case against Ryanair in the Netherlands: https://www.uhebtrechten.nl/en/.252 See: https://www.test-aankoop.be/mobiliteit/auto-s/nieuws/u-hebt-rechten.253 M. Novak, “The SNCB sued because of the strikes” (27 May 2015), http://www.brusselstimes.com/belgium/3114/the-sncb-sued-because-of-the-strikes; SCO and DDS, “Staking bij NMBS leidt tot allereerste groepsvordering” (27 May 2015), http://www.standaard.be/cnt/dmf20150526_01699666; WBA, “Al meer dan 17.000 mensen tekenen in op groepsvordering tegen NMBS” (27 May 2015), http://www.nieuwsblad.be/cnt/dmf20150526_01699962.254 X, “De NMBS vergoedt de pendelaars dankzij onze acties” (6 January 2016), https://www.test-aankoop.be/mobiliteit/auto-s/nieuws/de-nmbs-vergoedt-de-pendelaars-dankzij-onze-acties.

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https://www.test-aankoop.be/mobiliteit/auto-s/nieuws/de-nmbs-vergoedt-de-pendelaars-dankzij-onze-acties

http://www.nieuwsblad.be/cnt/dmf20150526_01699962


http://www.brusselstimes.com/belgium/3114/the-sncb-sued-because-of-the-strikes

https://www.test-aankoop.be/mobiliteit/auto-s/nieuws/u-hebt-rechten

https://www.uhebtrechten.nl/en/

http://www.vousavezdesdroits.be/

http://www.uhebtrechten.be/

https://www.test-aankoop.be/mobiliteit/auto-s/nieuws/u-hebt-rechten/onze-eisen

https://www.test-aankoop.be/mobiliteit/auto-s/nieuws/u-hebt-rechten/onze-eisen

https://www.test-aankoop.be/action/pers%20informatie/persberichten/2015/eerste-zitting-class-action-nmbs

https://www.test-aankoop.be/action/pers%20informatie/persberichten/2015/nmbs-procedure



http://www.xpats.com/test-achats-files-first-ever-class-action-suit-against-sncb

http://www.flanderstoday.eu/current-affairs/test-aankoop-files-belgiums-first-ever-class-action-suit-against-nmbs

http://www.flanderstoday.eu/current-affairs/test-aankoop-files-belgiums-first-ever-class-action-suit-against-nmbs


spokesman, however, has stated that compensation was made in accordance with the usual arrangement.255 It is therefore safe to say that the NMBS at least is signaling its willingness to compensate. Furthermore, troubled train travelers can enter their account number on the renewed form for compensation so that they can be compensated in cash.256

There have been some negative responses to the class action. This may come as no surprise, since it concerns the difficult balance between compensating train travelers and respecting the employees’ right to strike.257

255 BELGA and KVDA, “Spoorstaking: NMBS voorziet compensatie voor reizigers met vertraging” (4 January 2016), http://www.knack.be/nieuws/belgie/spoorstaking-nmbs-voorziet-compensatie-voor-reizigers-met-vertraging/article-normal-641813.html; X, “Staking: NMBS voorziet compensatie” (5 January 2016), http://nieuws.vtm.be/binnenland/173096-staking-nmbs-voorziet-compensatie.256 See the form for compensation (in French) on http://www.belgianrail.be/en/customer-service/compensation-for-delays/~/media/14D6DBE133714AD298FDD6118F985570.pdf.257 J. Verlinden and P. Van Mulders, “Belgium” in I. Dodds-Smith and A. Brown (eds.), The International Comparative Legal Guide to: Class & Group Actions 2016, London, Global Legal Group, 2015, (48) 51, freely accessible on https://www.iclg.co.uk/practice-areas/class-and-group-actions/class-and-group-actions-2016/belgium. See the remarks of Roger Blanpain (professor emeritus labor law): Redactie, “Blanpain: ‘Groepsvordering tegen NMBS is ongegrond’” (27 May 2015), http://www.demorgen.be/economie/blanpain-groepsvordering-tegen-nmbs-is-ongegrond-b22cdf93/.

40

http://www.demorgen.be/economie/blanpain-groepsvordering-tegen-nmbs-is-ongegrond-b22cdf93/

http://www.demorgen.be/economie/blanpain-groepsvordering-tegen-nmbs-is-ongegrond-b22cdf93/

https://www.iclg.co.uk/practice-areas/class-and-group-actions/class-and-group-actions-2016/belgium

https://www.iclg.co.uk/practice-areas/class-and-group-actions/class-and-group-actions-2016/belgium

http://www.belgianrail.be/en/customer-service/compensation-for-delays/~/media/14D6DBE133714AD298FDD6118F985570.pdf

http://www.belgianrail.be/en/customer-service/compensation-for-delays/~/media/14D6DBE133714AD298FDD6118F985570.pdf

http://nieuws.vtm.be/binnenland/173096-staking-nmbs-voorziet-compensatie

http://www.knack.be/nieuws/belgie/spoorstaking-nmbs-voorziet-compensatie-voor-reizigers-met-vertraging/article-normal-641813.html

http://www.knack.be/nieuws/belgie/spoorstaking-nmbs-voorziet-compensatie-voor-reizigers-met-vertraging/article-normal-641813.html

4) Extortionate prices

Test-Achats has expressed its intention to address the problem of extortionate prices. Concert tickets are being resold on the Internet at prices which are much higher than the official ones.258 Since 1 October 2013, however, the resale of tickets for events falls within the scope of the Act regarding the sale of admission tickets for events.259 Regular resale or occasional resale at a higher price than the official one are prohibited.260 The Federal Public Service Economy is aware of the problem and warns261 consumers on its website.262 Still, complaints keep coming in, particularly from Dutch websites, so that Test-Achats has decided to initiate a class action against three large websites.263 The websites concerned (www.topticketsshop.nl, www.rang1tickets.nl and www.ticketsbelgie.be) have been blocked after scandals involving the resale of tickets for Adele and K3 events at extortionate264 prices.265 The examining magistrate (juge d’instruction) of Brussels has ordered the Federal Computer Crime Unit to have those three websites blocked by the internet providers.266 Victims can register on a special website, launched by Test-Achats, namely www.testaankoop.be/doorverkooptickets. Repayment is demanded of the difference between the extortionate price and the official ticket price.267 Blocking the websites does not suffice, since victims need to be fully reimbursed for the additional price paid.268 More than 3,000 victims already registered.269 The phenomenon is to be addressed in a cross-border way so that the Belgian and Dutch Ministers of Economy have already discussed the matter.270

258 Z. Saerens and BELGA, “Test-Aankoop start groepsvordering tegen sites die tickets doorverkopen” (28 April 2016), http://deredactie.be/cm/vrtnieuws/cultuur%2Ben%2Bmedia/muziek/1.2642136.259 Act of 30 July 2013 regarding the sale of admission tickets for events, Official Gazette 6 September 2013.260 Article 5, §§1-2 Act of 30 July 2013 regarding the sale of admission tickets for events.261 Blacklists of websites can be found on, for instance, www.ilovemyticket.be or www.safeconcerts.com.262 http://economie.fgov.be/nl/consument/bedrog/voorbeelden/doorverkoop_concerttickets/#.V-pudCGLRMw.263 G. Gottfried, “Belgium Blocks Secondary Ticketing Site Access” (13 May 2016), http://www.pollstar.com/news_article.aspx?ID=824529; Z. Saerens and BELGA, “Test-Aankoop start groepsvordering tegen sites die tickets doorverkopen” (28 April 2016), http://deredactie.be/cm/vrtnieuws/cultuur%2Ben%2Bmedia/muziek/1.2642136; X, “Voor € 3000 naar Adele? Stop de woekerprijzen!” (5 August 2016), http://www.test-aankoop.be/hightech/internet/nieuws/voor-3000-naar-adele-stop-de-woekerprijzen.264 E.g. € 3000 instead of € 121, 5 for one individual concert ticket for Adele.265 S. Van Poucke, “Drie websites geblokkeerd die concerttickets doorverkopen aan woekerprijzen” (27 April 2016), http://deredactie.be/cm/vrtnieuws/cultuur%2Ben%2Bmedia/muziek/1.2641029. 266 BELGA, “Onderzoeksrechter laat malafide ticketwebsites blokkeren” (27 April 2016), http://nl.metrotime.be/2016/04/27/news/onderzoeksrechter-laat-malafide-ticketwebsites-blokkeren/; Persmededeling door Kris Peeters, Vicepremier en Minister van werk, economie, consumenten en belast met buitenlandse handel, “Doorverkoop tickets K3 en Adele: 3 websites worden geblokkeerd” (27 April 2016), http://www.krispeeters.be/sites/krispeeters/files/20160427_pb_doorverkoop_tickets_blokkering.pdf.267 X, “Gedaan met woekerprijzen voor concerttickets! Test-Aankoop start class action”(28 April 2016), https://www.test-aankoop.be/action/pers%20informatie/persberichten/2016/concerttickets.268 X, “Ticketgedupeerden samen naar rechter” (28 April 2016), http://nieuws.vtm.be/binnenland/188632-ticketgedupeerden-samen-naar-rechter.269 X, “Voor € 3,000 naar Adele? Stop de woekerprijzen!” (5 August 2016), http://www.test-aankoop.be/hightech/internet/nieuws/voor-3000-naar-adele-stop-de-woekerprijzen.270 A.Fr. and BELGA, “Belgique et Pays-Bas contre la revente de tickets de concert” (17 December 2015), http://deredactie.be/cm/vrtnieuws.francais/magazine/1.2525941.

41

http://deredactie.be/cm/vrtnieuws.francais/magazine/1.2525941

http://www.test-aankoop.be/hightech/internet/nieuws/voor-3000-naar-adele-stop-de-woekerprijzen

http://nieuws.vtm.be/binnenland/188632-ticketgedupeerden-samen-naar-rechter

http://nieuws.vtm.be/binnenland/188632-ticketgedupeerden-samen-naar-rechter

https://www.test-aankoop.be/action/pers%20informatie/persberichten/2016/concerttickets

http://www.testaankoop.be/doorverkooptickets

http://www.krispeeters.be/sites/krispeeters/files/20160427_pb_doorverkoop_tickets_blokkering.pdf

http://nl.metrotime.be/2016/04/27/news/onderzoeksrechter-laat-malafide-ticketwebsites-blokkeren/

http://deredactie.be/cm/vrtnieuws/cultuur%2Ben%2Bmedia/muziek/1.2641029

http://www.ticketsbelgie.be/

http://www.rang1tickets.nl/

http://www.topticketsshop.nl/

http://www.test-aankoop.be/hightech/internet/nieuws/voor-3000-naar-adele-stop-de-woekerprijzen



http://www.pollstar.com/news_article.aspx?ID=824529

http://economie.fgov.be/nl/consument/bedrog/voorbeelden/doorverkoop_concerttickets/#.V-pudCGLRMw

http://www.safeconcerts.com/

http://www.ilovemyticket.be/


5) Volkswagen

A lot has already been said about the so-called Dieselgate scandale.271 Without going into the technicalities of emission or combustion,272 the bottom line is that Volkswagen installed software in some of its diesel cars to cheat on emission tests.273 In the meanwhile, a settlement has been reached in the US,274 but Volkswagen refuses to settle in Belgium. A test case was brought before the court by a (not further specified) Belgian SME (small and medium enterprise) which claimed that it was unable to sell its diesel cars at reasonable prices because of the cheated software.275 Test-Achats has initiated a class action against Volkswagen for having sold cars with the cheating software.276 Even though software updates may have resulted in a reparation, consumers are still entitled to compensation for the damages suffered.277 Test-Achats claims compensation for everyone who has bought a diesel car from Volkswagen equipped with the cheating software between 1 September 2014 and today.278 The starting date corresponds with the date the Belgian class action mechanism entered into force. However, Test-Achats has stated to individually assist Test-Achats subscribers who bought a car before that particular date.279 Although Test-Achats prefers reaching a settlement – as Volkswagen did in the US280 – an introductory session took place on 9 September 2016281 and the next session is scheduled for 10 October 2016.282 Nearly 9,000 consumers registered,

271 See, for instance, the overview at http://deredactie.be/cm/vrtnieuws/economie/2.41075 and the timeline at Didier, “Dieselgate: tijdlijn van het Volkswagen schandaal (sic)” (22 April 2016), http://www.egear.be/dieselgate/.272 See: S. Verhelst, “Dieselgate: feiten en fictie” (9 October 2015), http://deredactie.be/cm/vrtnieuws/opinieblog/opinie/1.2464406.273 R. Hotten, “Volkswagen: The scandal explained” (10 December 2015), http://www.bbc.com/news/business-34324772.274 F. Bruggeman, “Volkswagen betaalt elke Amerikaan met sjoemelsoftware 4.400 euro” (20 April 2016), http://deredactie.be/cm/vrtnieuws/economie/2.41075.275 BELGA, “Volkswagen weigert verzoening met Belgische kmo over sjoemelsoftware” (29 February 2016), http://deredactie.be/cm/vrtnieuws/economie/2.41075; D. Soenens, “VW weigert minnelijke schikking in Belgische rechtszaak” (1 March 2016) http://www.demorgen.be/economie/vw-weigert-minnelijke-schikking-in-belgische-rechtszaak-b1114ac9/.276 BELGA and D. Baert, “Test-Aankoop start groepsvordering tegen Volkswagen voor sjoemelwagens” (15 June 2016), http://deredactie.be/cm/vrtnieuws/economie/2.41075; B. Everaert, “Test-Achats attaque Volkswagen en justice pour les moteurs truqués” (22 April 2016), http://www.lecho.be/dossier/vw/Test_Achats_attaque_Volkswagen_en_justice_pour_les_moteurs_truques.9757741-8206.art?ckc=1&ts=1475052089; X, “Belgian consumers start class action against Volkswagen” (15 June 2016), http://deredactie.be/cm/vrtnieuws.english/videozone_ENG/1.2684220.277 Rédaction, “Test-Achats introduit une action collective contre Volkswagen” (15 June 2016), http://www.7sur7.be/7s7/fr/1783/Economie/article/detail/2739941/2016/06/15/Test-Achats-introduit-une-action-collective-contre-Volkswagen.dhtml?utm_medium=rss&utm_content=belgiquepar7sur7be24/247/7toutesvosinfosnationales; X, “Test-Achats introduit une action collective contre Volkswagen” (15 June 2016), http://trends.levif.be/economie/entreprises/test-achats-introduit-une-action-collective-contre-volkswagen/article-normal-512673.html.278 On the online form to join the class action, victims have to enter the date on which they signed the order form or sales agreement. The latest possible date is today so that people buying cars with the cheating software today can still become class members.279 X, “Dieselgate: samen naar de rechter tegen de Volkswagen-groep!” (7 July 2016), http://www.test-aankoop.be/auto-fiets/auto-s/dossier/dieselgate-wij-zijn-allemaal-bedrogen.280 F. Bruggeman, “Volkswagen heeft geen geld voor gedupeerden in Europa? Niks van” (4 July 2016), http://deredactie.be/cm/vrtnieuws/economie/2.41075.281 X, “Vendredi aura lieu la première audience de l'action collective de Test-Achats contre VW” (6 September 2016), http://trends.levif.be/economie/entreprises/vendredi-aura-lieu-la-premiere-audience-de-l-action-collective-de-test-achats-contre-vw/article-normal-547631.html.

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http://trends.levif.be/economie/entreprises/vendredi-aura-lieu-la-premiere-audience-de-l-action-collective-de-test-achats-contre-vw/article-normal-547631.html

http://trends.levif.be/economie/entreprises/vendredi-aura-lieu-la-premiere-audience-de-l-action-collective-de-test-achats-contre-vw/article-normal-547631.html

http://deredactie.be/cm/vrtnieuws/economie/2.41075

http://www.test-aankoop.be/auto-fiets/auto-s/dossier/dieselgate-wij-zijn-allemaal-bedrogen


http://trends.levif.be/economie/entreprises/test-achats-introduit-une-action-collective-contre-volkswagen/article-normal-512673.html

http://trends.levif.be/economie/entreprises/test-achats-introduit-une-action-collective-contre-volkswagen/article-normal-512673.html

http://www.7sur7.be/7s7/fr/1783/Economie/article/detail/2739941/2016/06/15/Test-Achats-introduit-une-action-collective-contre-Volkswagen.dhtml?utm_medium=rss&utm_content=belgiquepar7sur7be24/247/7toutesvosinfosnationales



http://deredactie.be/cm/vrtnieuws.english/videozone_ENG/1.2684220

http://www.lecho.be/dossier/vw/Test_Achats_attaque_Volkswagen_en_justice_pour_les_moteurs_truques.9757741-8206.art?ckc=1&ts=1475052089

http://www.lecho.be/dossier/vw/Test_Achats_attaque_Volkswagen_en_justice_pour_les_moteurs_truques.9757741-8206.art?ckc=1&ts=1475052089


http://www.demorgen.be/economie/vw-weigert-minnelijke-schikking-in-belgische-rechtszaak-b1114ac9/

http://www.demorgen.be/economie/vw-weigert-minnelijke-schikking-in-belgische-rechtszaak-b1114ac9/



http://www.bbc.com/news/business-34324772

http://www.bbc.com/news/business-34324772

http://deredactie.be/cm/vrtnieuws/opinieblog/opinie/1.2464406

http://www.egear.be/dieselgate/


according to Test-Achats and it is still possible to join the class action via a website283.284 The class action is the first one on such a large scale, considering the fact that around 400,000 diesel cars in Belgium are affected by the cheating software.285

Besides Volkswagen, Test-Achats also targets d’Ieteren Auto, which is the official distributor of Volkswagen in Belgium.286 There had been several complaints about an abnormally high oil consumption by Volkswagen group vehicles, damaging parts of the vehicle.287 Test-Achats provided consumer with a report form to map the issue and intends to start negotiations about compensation with d’Ieteren in September 2016.288

282 X, “#Dieselgate: Inleidende zitting groepsvordering en nieuwe dagvaarding door Test-Aankoop” (9 September 2016), https://www.test-aankoop.be/action/pers%20informatie/persberichten/2016/dieselgateaudience.283 http://www.test-aankoop.be/auto-fiets/auto-s/dossier/dieselgate-wij-zijn-allemaal-bedrogen. In France, the start-up Weclaim walks down the same road of grouping the victims via online instruments: J. Chelet, “Weclaim, la start-up qui vous aide gratuitement à attaquer volkswagen” (23 June 2016), http://www.capital.fr/bourse/actualites/weclaim-la-start-up-qui-vous-aide-gratuitement-a-attaquer-volkswagen-1140860#xtor=RSS-217.284 X, “#Dieselgate: Inleidende zitting groepsvordering en nieuwe dagvaarding door Test-Aankoop” (9 September 2016), https://www.test-aankoop.be/action/pers%20informatie/persberichten/2016/dieselgateaudience.285 X, “Scandale VW : Test-Achats veut une indemnisation pour les Belges” (15 June 2016), http://www.lavenir.net/cnt/dmf20160615_00841389.286 http://www.dieteren.be/dieteren-auto-en.html.287 GDC, “Onderzoek naar olieverbruik VW” (11 May 2016), http://www.standaard.be/cnt/dmf20160510_02283137; F. Segers, “Nu ook beroering over benzinemotoren van Volkswagen” (8 October 2015), http://deredactie.be/cm/vrtnieuws/economie/1.2463861; Redactie, “Abnormaal hoog olieverbruik bij benzinemotoren van Volkswagen” (10 May 2016), http://www.hln.be/hln/nl/927/Auto/article/detail/2700271/2016/05/10/Abnormaal-hoog-olieverbruik-bij-benzinemotoren-van-Volkswagen.dhtml.288 X, “Abnormaal hoog olieverbruik? Wij verdedigen uw rechten!” (1 August 2016), http://www.test-aankoop.be/auto-fiets/auto-s/nieuws/olieverbruik/1.

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http://www.test-aankoop.be/auto-fiets/auto-s/nieuws/olieverbruik/1

http://www.test-aankoop.be/auto-fiets/auto-s/nieuws/olieverbruik/1

http://www.hln.be/hln/nl/927/Auto/article/detail/2700271/2016/05/10/Abnormaal-hoog-olieverbruik-bij-benzinemotoren-van-Volkswagen.dhtml

http://www.hln.be/hln/nl/927/Auto/article/detail/2700271/2016/05/10/Abnormaal-hoog-olieverbruik-bij-benzinemotoren-van-Volkswagen.dhtml



http://www.dieteren.be/dieteren-auto-en.html

http://www.lavenir.net/cnt/dmf20160615_00841389

https://www.test-aankoop.be/action/pers%20informatie/persberichten/2016/dieselgateaudience


http://www.capital.fr/bourse/actualites/weclaim-la-start-up-qui-vous-aide-gratuitement-a-attaquer-volkswagen-1140860#xtor=RSS-217

http://www.capital.fr/bourse/actualites/weclaim-la-start-up-qui-vous-aide-gratuitement-a-attaquer-volkswagen-1140860#xtor=RSS-217




B.2 Ombudsmen289

1) The Office of the Ombudsman for Energy

Initial situation:

In March 2014, a residential consumer living in Brussels, Mr M., receives a €5,200 bill from his supplier, covering the period from 5 December 2009 to 27 October 2013. This late invoicing causes great harm to Mr M., and is not justified by the supplier.

The consumer tries to find an arrangement with the supplier but does not succeed. Mr M. formulates a complaint towards the Energy Ombudsman Service.

Position of the Supplier:

The supplier acknowledges a non-compliance with its general terms but offers only a payment plan in 48 months (covering the period without invoicing), as well as a €520 credit note as a gesture of goodwill (i.e. 10% of the disputed bill). The supplier says Mr M. never explicitly claimed his annual bills and therefore is also responsible for such a situation.

The complainant refutes this statement and refuses the supplier's proposal.

Ombudsman’s recommendation:

The Ombudsman consults with the DSO and they analyse that the invoicing should only take into account the period from 2012 to 2013, as the last meter reading dates back September 7, 2013 and the previous was up to 8 August 2012.

The Ombudsman issues a recommendation arguing that the Technical regulation in Brussels was not correctly applied by the supplier. The Technical regulation plans that the consumer has two years to challenge the meter reading indexes. Therefore, the supplier should not charge the consumer for the years 2009, 2010 and 2011.

Result of the dispute:

The supplier proposes to grant a 30% discount on the consumption from December 2009 to August 2010; a 20% reduction on the consumption from August 2010 to September 2011 and a 10% reduction on the consumption from September 2011 to September 2013. This leads to a commercial gesture of €1,695. The supplier also offers a payment plan in maximum 48 instalments to clear the remaining open balance.

The complainant accepts this proposal.

289 The case studies were delivered to us by the ombudsmen.

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Impact on policy:

The Belgian ombudsman suggests adapting the Consumer agreement in order that they would not be any more such a period of more than twelve months from the reception of meter data by the distribution system operator in which the provider would still be able to charge a consumer.

The same principle applies in France. In Act No. 2015-992 of 17 August on the energy transition as part of a renewable growth (Official Journal RF No. 0189 of 18 August 2015), the same principle is laid down in Article 202 of the law: unless exceptional cases, no electricity or gas consumption older than fourteen months before the latest meter reading can be charged to the consumer.

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2) The Office for the Ombudsman for Telecommunication:

STRUCTURAL IMPROVEMENT FOLLOWING RECOMMENDATIONS AND POLICY SUGGESTIONS BY THE OFFICE OF THE TELECOMMUNICATIONS OMBUDSMAN REGARDING PREMIUM SMS AND M-COMMERCE SERVICES CHARGED BY TELECOM OPERATORS

1.Introduction

The Office of the Telecommunications Ombudsman has the competence to mediate in complaints against telecom operators. The Office of the Ombudsman receives among other things complaints against mobile phone operators about the billing of premium SMS and M-commerce services. These are services that are not organised by telecom operators, but which use the operator’s network, whereby the operator acts as the collector of the amounts due. The providers of those services, which are offered worldwide to telecom users, are often foreign companies, which are difficult to reach for Belgian consumers, also due to a possible language barrier. The content of these “third-party services” is very diverse: ringtones, quizzes and contests, astrology, information messages, televoting, eroticism, dating, chatting, etc. Since 2002, the issue of the complaints about the billing of premium SMS services and (since 2013) of M-commerce services has many times been raised by the Office of the Ombudsman in its annual reports. Each time recommendations were formulated (and repeated) based on findings during the treatment of several thousands of appeals. Those complaints (and recommendations) have induced the sector to take self-regulating initiatives. In general this has entailed structural improvements, which we discuss in more detail in this note. Nevertheless there are still a number of challenges to be faced by the sector. Indeed, after years of declining numbers of complaints the Office of the Ombudsman again has been noticing a certain rise of disputes since 2015. As a matter of fact it turns out that certain service providers do not entirely observe the existing directives and therefore violate consumer rights. As a result, the Office of the Telecommunications Ombudsman continues to closely follow this issue based on new complaints and will not fail to share its experiences and to make suggestions to the sector and policymakers.

The Office of the Telecommunications Ombudsman mainly uses its annual reports to make public structural problems that surface while treating appeals. This instrument is regularly consulted by all stakeholders and policymakers with a view to establishing provisions of a legal and/or self-regulating nature, as will be shown in this note. This also applies to the issue of premium SMS and M-commerce complaints. In addition, since the phenomenon started in 2002, the Office of the Ombudsman has continuously had contacts with the Government, the regulator, the FPS Economy and evidently also the operators and even service providers, regarding this important issue.

2.Examples of complaints

Example 1 (premium SMS complaint from 2009)

“I reacted to a contact advertisement by way of an SMS at number 7404. The advertisement said that each text would cost me € 1.50, without any further explanation. My bill of 16 April 2009 amounted to € 1,273.50. Apparently I also pay for messages received (...)”

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Example 2 (premium SMS complaint from 2009)

“On 30/12/2008 I received from Proximus a bill on which was mentioned “30 received from 9989 Ring Logo Euro 49.5870". I immediately called the Proximus customer service. They assured me that this service would be closed down. They also informed me that the company involved in this fraud was Eldorado. Through the Internet I managed to get hold of a telephone number of that company. The latter assured me that my cell phone number would be deleted from its lists. However, a month later, the same amount was billed again ... Surely this must be pure fraud and therefore I want to submit a complaint. I will also go to the police.”

Example 3 (M-commerce complaint from 2013)

“My 13 year old son has had a mobile phone since over a year and had acquired during the first months (by way of Internet access) a so-called free game. His mobile phone charges are indicated on a joint bill to my name. After the first bill from Proximus, on which we discovered that this game actually cost a lot of money nonetheless, we pointed out the costs to him and he had promised not to buy anything anymore. The deal was that he would have to pay the charges himself. After that

month we blocked his Internet access. At first the indications on the bill were not clear to me: “BOKU 282080471 (Game) 4400 P4F Funds”. No idea what this means (game, updates ...?). BOKU would be a payment service operating as an intermediary between the user and the provider. Yet, we kept on being charged regularly for this game on our next Proximus bills. We thought our son had continued to make purchases through that service. I called Proximus several times in order to stop that payment service. Each time I was promised that it had been stopped. For a month things were OK, until the amounts started to appear on our bills again. (…) But, is it normal for such a service to be offered to minors? I have not had to give my consent in any way to activate that service, but I have had to make every effort to block it.”

3.Discussion

In 2002, the Office of the Telecommunications Ombudsman was faced for the first time with complaints about the charging of premium SMS services. In the following years thousands of times an appeal was to be made to the Office of the Ombudsman by users claiming not to have requested those services, yet to be charged for them by their operators.

The first time the Office of the Ombudsman drew attention to this issue was in its 2002 annual report and again in its 2003 annual report.

In 2004, the sector took the initiative to draw up a code of conduct (the GOF Guidelines for SMS/MMS/LBS services) for the providers of premium SMS services.

This first version of the GOF Guidelines provided in many aspects an answer to the complaints. It was pointed out to providers that activation of premium SMS services was only allowed following an express request from users. Providers were also obligated to

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inform users by means of a standardised formulation by SMS about the tariffs for sending and receiving SMS messages. Moreover, the tariff indications in advertisements were regulated (“Graphic Charter”). Finally, the third important measure was that premium SMS services had to be stopped upon simple request from the user. In that context a universal opt-out method was created, i.e. sending a stop code. However, this first version of the GOF Guidelines did not give solace for the numerous complaints about extremely high costs sometimes resulting from participation in chat sessions through premium text messages. Indeed, that type of services was not or insufficiently regulated.

Although the first version of the GOF Guidelines was a fair initiative to avoid the activation of unsolicited services on the one hand and to better inform users on the other, the number of complaints submitted to the Ombudsman continued to rise unabated from 100 in 2003, 467 in 2004, 720 in 2005 up to 1,412 in 2007 and 1,586 in 2008.

In the 2005, 2007 and 2008 annual reports the Office of the Telecommunications Ombudsman again and again formulated and repeated recommendations based on what were observed to be structural problems during the treatment of complaints. The sector reacted, specifically by adapting the GOF Guidelines.

In the course of 2008 new codes of conduct (an update of the existing GOF Guidelines) became valid. The adaptations undeniably aimed at informing consumers in the best possible way, not in the least because providers of subscription services were from then on forced to use the so-called ‘double opt-in’. In theory the principle is that from that moment on each user had to reconfirm his subscription to a premium SMS service and was at the same time informed by the provider in a transparent manner using a standard message about all terms, including the tariffs.

Despite the amendment to the GOF Guidelines a record amount of 1,931 complaints about premium SMS services was submitted the following year (2009) to the Office of the Ombudsman. As from 2010 however, there was a turning point, so that in general there was a sharp fall in the number of complaints to 400 in 2014.

This positive tendency can partly be explained by a late implementation of the renewed GOF Guidelines (which were slightly adapted in 2011), but just as well by the Royal Decree laying down the Ethics Code for telecommunications taking effect on 9 February 2011.

The most important new provision benefiting users included in the Ethics Code was that from then on, service providers were under the obligation to warn the customer by means of a free SMS message about every expenditure of € 10. In case of a subscription service this SMS notification also had to mention the terms to opt out. This measure offered a solution for the many complaints mentioned by the Office of the Ombudsman in its previous annual reports, when users were not aware of the high consumption charges when knowingly participating in premium SMS services. This was specifically the case for chat services, which could sometimes result in telecom bills of hundreds, even thousands of euro. Such dramatic bill shocks as the subject of a complaint submitted to the Office of the Ombudsman had not or had hardly existed since the Ethics Code had come into force.

Compared to 2014 (400 complaints) the Office of the Ombudsman again registered an increase up to 518 complaints in 2015, a number that in all likelihood is also going to be

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approximated in 2016. This still means a sharp fall compared to the record year of 2009 (1,931 complaints), though. Treatment of recent complaints shows that certain service providers violate the GOF Guidelines and the Ethics Code. Mediation in these cases almost invariably leads to crediting the disputed charges, precisely because it can be proven that the service provider has not followed the guidelines.

From mid-2013 onwards, the Office of the Ombudsman received complaints about ‘third-party services’ being charged denominated as ‘M-commerce’ or ‘MPay’. The issue was almost identical to that of the premium SMS complaints: hundreds of users reported not to have any clue whatsoever about what the contested charges related to, to be kept guessing about the possibility to stop those unsolicited services and not to get any cooperation from their telecom operators. In its 2013 annual report the Office of the Ombudsman raised this new issue and formulated recommendations to the sector. It is very probable that these recommendations have led to the drafting of a code of conduct specifically aimed at M-commerce services (the GOF Guidelines for ‘Direct Operator Billing’). By analogy with the guidelines applicable to premium SMS services, this code of conduct mainly focused on the major difficulties, i.e. the activation of a service with the client’s express consent, correct and transparent information about the tariffs and simple terms for opting out, among other things.

Provided that the sector observes the codes of conduct mentioned above, it can be said that they have entailed a structural improvement based on recommendations and policy suggestions from the Office of the Telecommunications Ombudsman. Especially for M-commerce a sharp fall of the number of complaints was noted a few months after the introduction of the first version of the GOF Guidelines. In the case of premium SMS messages the positive effect (a decrease of the number of complaints) of establishing a code of conduct was not noticeable until various adaptations of the terms over a 6 year period. In that case the coming into effect of the Ethics Code played a decisive role in the decrease of the number of complaints. In addition, thanks to the mediation by the Office of the Ombudsman a solution can often be reached in disputes about premium SMS charges, precisely because violations of the Guidelines are very frequently found.

The recent rise in the number of complaints refocuses our attention back on the issue of premium SMS complaints specifically. Based on the current and future complaints the Office of the Telecommunications Ombudsman will continue to detect structural difficulties and inform and advise both the sector and policymakers.

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STRUCTURAL IMPROVEMENT FOLLOWING RECOMMENDATIONS AND POLICY SUGGESTIONS BY THE OFFICE OF THE TELECOMMUNICATIONS OMBUDSMAN REGARDING CUSTOMER SUPPORT SERVICES BY TELECOM OPERATORS

1.Introduction

The Office of the Telecommunications Ombudsman acts as an appeal body. That means that this office can only intervene after the user has tried to reach an agreement with the telecom operator involved as regards the dispute.

In principle a user can contact his operator through different channels: by calling the customer support service; by writing a letter, fax or e-mail or by means of the website and in some cases personally by visiting the offices or points of sale.

In this context it is crucial to know whether the customer has indeed been successful in contacting the telecom operator within a reasonable period of time and in an easily accessible fashion. If the user is indeed able to communicate with the operator, he will rely on an efficient and customer-friendly attitude from the company involved with a view to an actual solution of the dispute. The user also expects that contacting his operator will not entail expenses.

A person contacting the Office of the Ombudsman is asked to share his experience with his operator’s customer support service. These testimonies revealed diverse structural problems the users are faced with during (attempts to make) primary contacts with telecom operators. These structural issues constituted the subject of various articles in the Ombudsman’s annual reports, repeating recommendations for the sector several times. In addition the Ombudsman repeatedly dealt with recurring problems regarding customer support services in contacts with the government, the regulator, the FPS Economy and of course the operators. We suspect that this repeated input of information regarding the difficulties the users are facing to contact their telecom operator is one of the reasons for the various initiatives that have finally resulted in a more optimal customer support service. One thing and another does not mean that the Ombudsman no longer receives complaints revealing that operators are hard to reach and/or do not treat primary complaints in a correct manner.

This article briefly describes the findings and recommendations of the Ombudsman on complaints about the telecom operators customer support services since 2002 as well as the initiatives that have been taken by the sector and the government to curtail the problem.

2.Examples of complaints

Example 1 (complaint from 2002)

Mr. D., a customer of NetNet’s, filed a complaint in December 2002 contesting certain calls made. During the ensuing paper war NetNet states: “This customer’s comments are a waste of time to us. Or [the complainant] pays or we’ll send his file to a collection agency. Within 8 days his telephone line will be disconnected.”


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Ms. M. complains about the attitude of one of the Belgacom customer support service’s employees. He had hung up after having reacted aggressively when she asked for more information about calls invoiced.


Mr. T. complains that he was not able to reach the free number of Voo all day. He had been trying to call this number between 8.30 a.m. and 20.45 p.m.


Following some uncertainty regarding a recent invoice Ms. D. called Telenet for more details. She tried to reach the customer service repeatedly but always got the same message “all our lines are exceptionally busy, waiting times can reach up to...”. In practice it was well nigh impossible to contact Telenet’s customer support service. Because Ms. D. did not pay her invoice in time, she was given a € 7 fine.


In November 2015 Mr. T. received a message from the number 9599. On his following Proximus invoice he saw that the receipt of this uncalled message had been charged. Mr. T. took the invoice contested to a Proximus store at K. The clerk looked at the invoice and said “everything looks normal”. Mr. T. asked to block the 9599 no. because he continued to receive these premium rate messages but the Proximus clerk sent him off empty-handed. As a result the problem continued and additional costs were charged on Mr. T’s invoice every time.

3.Discussion

The Office of the Ombudsman already mentioned the recurring problem of unanswered primary complaints by different operators in its 2002 annual report. In this context the Office of the Ombudsman insisted that each telecom operator makes available a well-functioning, customer-friendly customer support service that users can reach by telephone in an optimal fashion.

In the 2004 annual report attention was paid to the complaints evolution at the alternative operators (Scarlet, Tele2, Euphony and Versatel), who at that time were going through major changes regarding their offer and customer base. The numerous complaints showed that the service provided by these companies to existing customers was still considered to be the Achilles tendon par excellence. These operators’ after sales services seemed to be incapable of coping with the developments. There was an ever-increasing demand for a better accessibility by telephone and curtailment of the waiting times. The fact that some of these operators could only be contacted by means of very expensive numbers created ill-feeling among many users as well. The Ombudsman therefore suggested to implement a system in which the waiting times would be free of charge.

During the following year, 2005, a legal provision came into effect regarding the operators’ customer support services for the first time. Since the implementation of the Act of 13 June 2005 on electronic communications each operator has been obliged to provide the end-users with a “service for support by telephone”. Apart from a good accessibility this Act did not lay down specific goals regarding the functioning of a support service. In addition the Act

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stipulated that the operators were no longer allowed to impose expensive numbers such as 070 and 090X numbers to contact their support services. To this effect the legislator clearly took into account the Office of the Ombudsman’s recommendation in the 2004 annual report.

In the 2007 annual report the Office of the Ombudsman evaluated the implementation of the Act of 13 June 2005 on electronic communications by the operators. The aspect of customer support services was also dealt with therein. The Ombudsman concluded that this specific legal provision was largely productive, especially after Tele2 changed the expensive 070 number for its customer support service to a 02 number (zonal tariff) in 2006.

In spite of this globally positive development it appeared that customer support services provided by telecom operators ranked in the top 5 of the major complaint themes at the Office of the Ombudsman both in 2008 and in 2009. The complaints indeed showed that there was a tendency for both the accessibility and the quality of primary support by the operators to decrease. Apart from the inaccessibility by telephone the fact that many operators apparently did not respond to written complaints or even complaints sent by registered letter, was also cause for a lot of ill-feeling among the consumers. The consequences of a customer service that could not be reached were detrimental to the user as he was no longer able de facto to contest his invoices to the primary support service or report a malfunction. It is no coincidence that this negligence by the operators translated in a record number of appeals filed with the Office of the Ombudsman for Telecommunications. The problem however did not only lay in the difficulty to reach the operators. The quality of the primary complaints handling was below par as well. A great number of complaints filed with the Ombudsman showed that a lot of primary support services contradicted the customer’s complaints without any justification and in case of contact by telephone, interrupted the call. In the 2009 and 2011 annual reports the Office of the Ombudsman consequently felt compelled to conclude that the operator’s support services were in urgent need of a reassessment because of their non-negligible value. Their reputation could only be improved if an optimal accessibility and a more qualitative primary treatment of disputes were strived after. In order to avoid the communication channels available to the customers to become scarcer the Office of the Ombudsman advised all operators to always provide the users with the possibility to transmit questions and complaints in a written form. On the bright side, the Office of the Ombudsman noted in its 2011 annual report that the complaints showed that the customer support service employees had increasingly less the urge to sell additional products to the customer when the latter contacted them.

Moreover, in 2011 multiple initiatives were taken with a view to a structural improvement of the customer support service of telecom operators. Firstly an Act came into effect (the Act of 31 May 2011 pertaining to various provisions regarding telecommunications) obliging operators to run a customer support service that was from then on subject to a number of qualitative criteria with a view to an optimal guarantee of the consumer’s interests. In June 2011 more than 21 companies, including the major telecom companies, furthermore signed the thus entitled “Charter for customer-friendliness”. The Charter provided, among other things, for a maximum waiting time of 2.5 minutes for telephone calls by consumers to the customer support service. The text also provided for the possibility of a free call back in case this waiting time was exceeded. Operators also committed themselves to answer letters and e-mails within five days and to suspend the collection of the part of the invoice that has been contested. The call centre’s menu had to be simpler and certain oral agreements had to be confirmed in writing at the customer’s request.

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These particular commitments by the major operators to a large extent met the laments the users had been uttering for a decennium following their appeal filed with the Office of the Ombudsman.

One thing and another did not keep the Office of the Ombudsman from having to reiterate the attention to structural problems with the primary customer support services in its 2012 annual report. The recommendations issued to the telecom operators in this context were repeated time and time again and boiled down to these companies being invited to correctly implement the Charter for customer-friendliness.

The following years the Office of the Ombudsman noticed that the operators had begun to pay increasingly more attention to a solid customer support service. This turn translated into positive statistics. The Office of the Ombudsman still registered 1,565 complaints regarding customer support services in 2012, while this decreased to 834 and 710 cases in respectively 2013 and 2014. In 2015 this positive trend continued and the Office of the Ombudsman only noted 372 complaints regarding customer support services. For 2016 the Office of the Ombudsman expects a new all-time low for complaints regarding primary contacts. It should come as no surprise that these numbers also reflect the influx of appeals with the Office of the Ombudsman: a person who receives primary help by his operator in an efficient manner, will not file a complaint with the Office of the Ombudsman.

The time when the Office of the Ombudsman was flooded by complaints from users who were not able to contact their operator seems to belong to the past. The Office of the Ombudsman can thus concentrate on complaints regarding actual disputes and fully play its role as an appeals body.

One thing and another does not mean there is no more room for improvement. It still occurs that certain users address the Office of the Ombudsman because the waiting times at the operators customer support services upon contact by telephone are too long or because primary complaints are not being followed up in a serious manner. Especially regarding the primary complaints on the invoicing of services by third parties (such as premium rate text messages) there is room for improvement because the operators - who are the invoicing party - all too often refer their customers empty-handed to the service providers, who themselves are very hard to contact.

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Structural improvement following recommendations and policy suggestions by the Office of the Telecommunications Ombudsman regarding TV games / forbidden games of chance

Introduction

In the spring of 2004 the Office of the Telecommunications Ombudsman recorded a new category of complaints. Viewers who participated in a number of new programmes such as “Puzzeltijd” on VTM, “Play today/Play tonight” on Kanaal 2, “Toeters en bellen” on VT4 and “Allo Cadeaux” and “Le Mot Gagnant” on RTL-TVI, were faced with high bills.

Those were TV games where viewers were invited to send the solution to the question by texting to an SMS short number or by calling to an 0905 number. However, giving the right answer was not enough to win a prize. In some cases the participant had to be the “10th person sending an SMS” or the “10th caller” for instance. Only then was one invited to give the answer and state his or her phone number. Those data were collected and at the end of the game someone was called back at random. That person was then given the opportunity to win a large sum of money in the course of the programme itself. If the participant was not the tenth person, he was encouraged to have another try. As part of another game it was possible to have one’s data registered for each call, thus enhancing the chance of being selected at random as the “lucky one”, and of (possibly) winning a gift or a sum of money. In any case the common factor in these games was the instigation to make several calls. It was also striking that these games mainly focused on a very vulnerable public such as young, unemployed or aged people, i.e. people who were often short of money and at times when they were at home when the programmes were on television (in the afternoon and at night). The questions were so easy that anyone could find the solution. Therefore the impression was given that the sum of money or the gift was easy to win. Each call usually cost 1 euro, regardless of the duration of the call; for calls from a mobile phone the mobile operator charged an extra set-up cost. Text messages also cost 1 euro.

Many people submitted a complaint to the Office of the Ombudsman against their high bills, after having contacted their operators and being informed that the bill was correct and had to be paid. All persons who submitted such a complaint thought they had not made the large number of calls mentioned on the bill. They mostly claimed they had heard a busy tone or a fast busy tone, which in their opinion was billed unjustly. However, all operators who billed 0905 connections denied that busy or fast busy tones were billed and thought the billing was done correctly and that the invoices had to be paid.

The Office of the Ombudsman started to receive these complaints from March 2004, shortly after the new programmes were televised. The number of complaints peaked between April 2004 and July 2004. Each time, recommendations were formulated (and repeated) based on findings during the treatment of several hundreds of appeals.

The Office of the Ombudsman also raised this issue of complaints on billing text messages to a short number/ the billing of calls to an 0905 number in its annual report.

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Discussion

In 2004, the Office of the Telecommunications Ombudsman was faced for the first time with complaints about the charging of costs for TV games. Considering the large number of complaints submitted to both the Office of the Ombudsman and the Gaming Commission the latter started an investigation. This Commission forwarded some 50 complaints to the Brussels public prosecutor’s office. The fact is, the Office of the Ombudsman was convinced that the case involved a game of chance for which the television channels had no licence.

For the following reason the Office of the Ombudsman thought a game of chance was involved:

Under Article 2 of the Act of 7 May 1999 on games of chance the following elements are required to define a game of chance:

there has to be a game or a bet there has to be a stake of any kind there has to be a loss or a gain for one or more players, betters or organisers the element of chance, no matter how secondary, has to be present.

All of these elements were clearly present in the games concerned.

Under Article 4 of the same Act games of chance must not be operated without a licence.

Regardless of the question whether a game of chance was involved, also the billing and registration of the calls were questionable. A few complainants witnessed in their case before the Office of the Ombudsman that they had learned over the telephone from both Belgacom and Telenet employees that busy tones were also charged. Not a single operator has confirmed this in writing though. The telecom operators insisted that busy and fast busy tones are not charged. However, because so many viewers turned to the Office of the Ombudsman for that reason, the cause could also lie elsewhere. If it was indeed true that busy and fast busy tones were not charged, it was possible that the dial-up system of the television channels concerned functioned in another way than could be expected. The TV game participants may have been listening to a tape with a busy tone, which could explain the billing of busy tones. Another possibility was the fact that after making the connection nothing could immediately be heard, so that the participant could have suspected that he did not have a connection, put the receiver down and tried again. However, those possibilities have never been confirmed or observed.

The Office of the Ombudsman looked for a solution for the victims and had to make a distinction between Belgacom (now Proximus) and the other operators. Indeed, the 0905-8... lines were lines belonging to Belgacom. Belgacom makes its lines available so that participation in these games was possible. The other operators only charged the registered 0905 calls.

The Office of the Ombudsman recommended all operators to credit the calls to 0905 numbers, since the games were forbidden games of chance.

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Belgacom was also given the recommendation to start an investigation into the dial-up system of the television channels concerned. It was the opinion of the Office of the Ombudsman that callers should at all times be able to determine whether or not they have established a connection. It was Belgacom’s task, as the owner of the line, to see to that. If this was not done, Belgacom had to take the necessary measures and stop to make those lines available for that type of games.

Moreover, the Office of the Ombudsman was of the opinion that the operators had the task of better informing their customers about the price and the prohibition for minors to participate in games through a spoken message, in accordance with the provisions of the then valid Act of 14 June 1991 on commercial practices and the information and protection of consumers. Following this message the caller had to be given another opportunity to break the connection free of charge.

In 2004, the sector took the initiative to draw up a code of conduct. In the “Code of conduct regarding the offer of certain services through telecommunications for the protection of consumers” the platform members (telecom operators and service providers) stipulated that this message was only required with 0908 and 0909 numbers, because in this case, the price per minute exceeded € 1.12.

The Office of the Ombudsman considered this code restricted the information obligation too much.

Belgacom preferred to wait for the results of the meetings with the Gaming Commission before starting to credit. Until then those who had submitted a complaint did not have to pay the disputed amounts.

In October 2004, Telenet decided to credit just for once the disputed 0905 calls to the account of all customers who had submitted a complaint to the Office of the Ombudsman, based on commercial considerations and also awaiting a final decision by the prosecutor’s office and/or the Gaming Commission. At the same time, Telenet set an 090X restriction on the line, so that high bills resulting from participating in such games would no longer be possible in the future. If the customer had this restriction removed again, he was responsible for the consequences of further calls to those numbers.

All other operators (e.g. Proximus, Tele2, Euphony, Scarlet, …) said they were not prepared to credit the 0905 calls.

In the meantime, the Minister of Justice had the amendment to Article 3 of the Act of 7 May 1999 on the games of chance, installations of games of chance and the protection of the players included in the Programme Act of 27 December 2004 (Belgian Official Gazette of 31 December 2004).

The Royal Decree of 21/06/2011 (Belgian Official Gazette 807/2011) organises the implementation of this provision and regulates the TV games as to provision of information, protection of minors, measures against excessive calling and proper treatment of complaints.

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Structural improvement following recommendations and policy suggestions by the Office of the Telecommunications Ombudsman regarding the charging of cancellation fees

Introduction

Since 2002 termination of mobile or fixed telephony contracts has been an almost inexhaustible source of disputes. The number of complaints relating to the cancellation of contracts for which the Office of the Telecommunications Ombudsman was regularly called in, was proof of the acute nature of the problem. In 2002, the Office registered about one thousand appeals. This number continued to rise over the years. In 2011, over 5,000 complainants submitted an appeal of this type to the Office. The peak was reached in 2012 with 5,500 complaints relating to this issue.

The disputes mostly resulted from a lack of information. Analysis of the complaints showed that the operators were giving unclear information about certain terms of the contract, mainly about the duration of the contract. The failure to provide clear information was also observed regarding the amount of the cancellation fees. Yet, informing the end-user about the cancellation fees is a very important matter. It is important for end-users to proceed with caution before they cancel their contract. That is only possible if they have transparent, comparable, correct and up-to-date information about the charges due at the moment of cancelling the contract.

Because of the level of the cancellation fees they could on the one hand constitute a real obstacle and an important and discouraging element to some end-users to fully use the chances offered by the liberalisation of the telecommunications market, specifically to subscribe to the most advantageous offer on the market. On the other hand the financial burden represented by those fees did sometimes have consequences for the budgetary balance, possibly causing trouble for end-users having a low or moderate income.

The Office of the Ombudsman has continuously pointed out the issue of the complaints about the charging of cancellation fees in its annual reports. In addition, since the phenomenon had started, the Office of the Ombudsman has continuously had contacts with the Government, the regulator, the FPS Economy and evidently also the operators. Each time recommendations were formulated (and repeated) based on the findings during the treatment of the several thousands of appeals. In general this has entailed structural improvements, which we discuss in more detail in this note.

Nevertheless there are still a number of challenges to be faced by the sector. In 2015, the Office of the Telecommunications Ombudsman received about 1,200 complaints regarding this problem. The office of the Telecommunications Ombudsman continues to receive complaints from companies that contest the cancellation fees charged, as well as from consumers who challenge the residual value of their devices taken into account (in case of a conditional sale), even though they were entitled to cancel their contract without any cancellation fees charged, for instance because of network problems. To this day it is still not evident to switch to another operator with a total telecom package. Therefore, the Office of

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the Telecommunications Ombudsman continues to closely follow this issue based on the new complaints and will not fail to share its experiences and to make suggestions to the sector and policymakers.

Examples of complaints

Example 1 (from 2005)

“Mr and Mrs V. have transferred their respective cell phone numbers to another mobile telephony operator. The previous mobile telephony operator charged € 203.81 of cancellation fees to Mrs V. As a compensation an amount of € 244.52 was charged to Mr V. Mr and Mrs V. do not remember having signed a fixed-term contract with Proximus. They do admit they have received bills on which “promotion” was mentioned, but claim not to know what this indication related to exactly.”

Example 2 (from 2011)

“Mr D. switched his call number to BASE because of problems with his subscription. Mr D. was convinced he had no more contractual obligations vis-à-vis de Proximus. Imagine his surprise when he received a bill on which the cancellation fee charged was stated. The complainant contested the fact that a contract renewal existed and challenged the high cancellation fee charged by Proximus for early termination of the contract.”

Discussion

In 2002, the Office of the Telecommunications Ombudsman was faced for the first time with appeals about the charging of cancellation fees. In the following years, thousands of times users were to call in the Office of the Telecommunications Ombudsman despite the criticism from this Office in its annual reports (2002 - 2011) and the negative opinion from the Consultative Committee for telecommunications (September 2003).

The cancellation fees represent the compensation an end-user has to pay in case of early termination of the contract. The amount of those charges mainly depended on the duration of the contract. The longer the duration, the higher the charges could therefore be in case of early termination.

Also the moment when the termination took place was decisive. The earlier the termination compared with the expiry date of the contract, the higher the amount claimed because of the termination of the contract could be.

It was therefore of great importance for end-users to be clearly informed about the duration of their contract, so that they would have an idea of the charges that could be claimed from them in case of early termination.

In this context in the issue of 23 November 2009 of the Belgian Official Gazette, a Ministerial Order of 12 November 2009 fixing the level of detail of the detailed basic invoice for electronic communications was published, which abolished the Ministerial Order of 27 April 2007.

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In Article 4 this Ministerial Order stipulates that for every fixed-term contract the basic invoice has to indicate the expiry date of the contract in a clearly legible manner. This provision came into effect on 1 August 2010, the day when the Ministerial Order of 12 November 2009 abolishing the Ministerial Order of 27 April 2007 and fixing the level of detail of the detailed basic invoice for electronic communications entered into force.

This provision undeniably meant a step forward in better informing consumers and should therefore definitely be highlighted.

The issue of the cancellation fees had not escaped the notice of the European legislator either. Indeed it was the subject of one of the 12 measures in the new regulatory package regarding networks and telecommunications services (Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009) which had to be transposed into national law by May 2011.

The third telecom package was finally transposed into Belgian law in the Act of 10 July 2012 pertaining to various provisions on electronic communications (Telecom Act, Belgian Official Gazette, 25 July 2012, p. 40969). The new provisions regarding charges inherent to early termination of contracts for electronic communications services were effective from 1 October 2012.

Those new provisions mean in many aspects an improvement compared to the situation that existed before.

The Office of the Ombudsman has pleaded several times for closing the gap between the situation of consumers on the one hand and that of certain categories of end-users, such as self-employed people, the liberal professions, non-profit organisations, SMEs and micro-companies on the other hand.

Before that, the cap on cancellation fees only applied to consumers. In most cases that cap was € 150. Following new provisions in the Act of 13 June 2005 on electronic communications there is also a cap on the cancellation fees for subscribers who do not have more than 5 call numbers.

Under Article 111/3, § 3, paragraph 1 of the Act of 13 June 2005 on electronic communications the operator is no longer allowed to claim from a consumer or from a subscriber who does not have more than 5 call numbers a compensation for terminating a permanent contract or for early termination of a fixed-term contract upon expiry of the sixth month following the start of the contract.

The extension of the cap on cancellation fees to subscribers having no more than five call numbers meant a great step forward and is therefore worth mentioning. By contrast, the situation remains the same for end-users having more than five call numbers.

Before, the contract duration was also a factor in the charges for early termination. The longer the contract duration, the more the cancellation fees could run up.

Article 111/3, § 3 of the Act of 13 June 2005 on electronic communications lays down that the contract duration has less impact from now on.

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The operator is allowed to claim compensation when the early termination takes place during the first 6 months (Article 111/3, § 3, second paragraph of the Act of 13 June 2005 on electronic communications). Yet, the compensation an operator is allowed to claim in this case, mustn’t exceed the subscription fee that would still be due until the expiry of the sixth month following the entry into force of the contract if that contract were not terminated early.

The determining element is now the moment when the termination takes place. The important factor now is whether the early termination takes place during or after the first 6 months of the contract. In the latter case no cancellation fees are claimed in principle. If on the contrary the contract is terminated early in the first six months, cancellation fees can be charged.

The new provisions of the Act of 13 June 2005 on electronic communications have led to a structural improvement of the sector, also based on recommendations and policy suggestions from the Office of the Telecommunications Ombudsman. The operators started to launch formulas without any loyalty period.

Only a few months after the introduction of the new Telecom Act a sharp drop in the number of complaints before the Office of the Ombudsman was already noted. From 5,500 complaints in 2012 the number of complaints about charging cancellation fees dropped to a little more than 2,000 in 2013, 1,500 complaints in 2014 and 1,200 complaints in 2015. In addition, thanks to the mediation by the Office of the Ombudsman a solution can often be reached in disputes about cancellation fees.

Based on the current and future complaints the Office of the Telecommunications Ombudsman will continue to detect structural difficulties and inform and advise both the sector and policymakers.

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Annex II. Schematic representation of important data of important Ombudsmen

1) Data from annual reports of 2013a. The Office of the Ombudsman for the Postal Sectorb. The Office of the Ombudsman for insurancesc. The Office of the Ombudsman for insurancesd. The Office of the Ombudsman for Energye. The Office of the Ombudsman for Telecommunicationf. The Ombudsman for train travelers (Ombudsrail)



4) Consumer Mediation Service

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2013Total number of complaints

(incl. complaints transferred from past year)

Files closed in 2013

Percentage of (founded) complaints

ending in positive result for complainer

Company/Product most complained about

Principal subject of the complaints

Average processing time (in working days)

The Office of the Ombudsman for the Postal Sector

14,405 (834 transferred) 13,333 69,2% BPOST Treatment of dispatches 38 days

The Office of the Ombudsman for

insurances4,817 4,177 50%

Insurance companies: car insurances

(civil liability insurance)

Contract management (termination) /


insurances2,523 684

88,01% (private persons)

61% (traders)

Payments and checking accounts (private persons)

Funding loss (traders)

Disputed transactions after loss/theft of

card (private persons)Funding loss (traders)

/


Energy6,657 (1,705 transferred) 2,659 89,5%

Electrabel, Luminus and Eandis

ElectricityMeter problems /

62


Telecommunication

21,519 (complaints in writing) 29,450 95,65% Belgacom/Proximus Billing /

The Ombudsman for train travelers

(Ombudsrail)5,504 2,629 54% NMBS Delays /

63

2014

Total number of complaints (incl.

complaints transferred from past year)







The Office of the Ombudsman for the

Postal Sector16,421 (1,072 transferred) 15,551 68% BPOST Treatment of

dispatches 32 days


insurances5,003

4,022 (by end of

January 2015)

52%Insurance companies: car

insurances (civil liability insurance)

Contract management (termination)

/

The Ombudsman in financial conflicts

(Ombudsfin)2,633 702


68% (traders)

Payments, checking accounts and credits

(private persons)Funding loss (traders)

Cards and non-mortgage credits (private persons)


/

64


Energy

4,819(1,491 transferred) 2,046 90,9% Electrabel and Eandis

Electricity and natural gas Meter problems /


Telecommunication

19,383 (complaints in writing) 20,450 93,43% Proximus/Belgacom Billing /

The Ombudsman for train travelers (Ombudsrail)

4,610 1,565 57,3% NMBS Delays and railway passes /

65

2015

Total number of complaints (incl.

complaints transferred from past year)







The Office of the Ombudsman for the

Postal Sector16,787 (870 transferred) 15,447 72% BPOST Treatment of

dispatches 32 days


insurances5,171

4,886 (by end of

January 2016)

52%Insurance companies: car

insurances (civil liability insurance)

Contract management (termination)

81 days

The Ombudsman in financial conflicts

(Ombudsfin)3,375 925


32,6% (traders)

Payments and checking accounts (private persons)

Funding loss(traders)

Disputed transactions after loss/theft of

card (private persons)


52 days


Energy

4,211(1,152 transferred) 1,702 81,9% Luminus & Eandis

Electricity and natural gas Meter problems /

66


Telecommunication

17,741 (complaints in writing) 18,932 94,21% Proximus Billing

52 days (mediation) or 19 days (telephonic

stalking)

The Ombudsman for train travelers (Ombudsrail)

6,260 2,129 53,3% NMBS Delays /

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Consumer Mediation Service (CMS)

Total complaints

in 2015: 2,921

June July August September October Novembe

r December

In French 152 124 113 133 141 115 139

In Dutch 337 242 280 248 197 339 361

Top 10 sectors

June July Aug Sep Oct Nov Dec

Electronics (ICT) Electronics (non-ICT)

Residential maintenance services Second-hand cars

Residential maintenance products Sports and recreation

Furniture Clothing

Large domestic appliances Small domestic appliances

Total complaints in 2015 2921Registered complaints in 2015 2174Total complaints dealth with and closed in 2015 1242Questions in writing for information 123Complaints outside competence CMS 747

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Classification per categoy

25% Guarantee17% Defective product16% Undelivered product or service13% Product or service does not correspond to order 6% Partial delivery and performance 6% Unjustifiable billing5% Other problems related to the delivery of a good4% Customer service4% Breaking the contract 3% Wrong billing or order form

How complaints are filed

43% Website35% FPS Economie2% Letter1% Visit19% Email

Top 10 businesses

26% Media Markt (67 complaints)13% Vanden Borre (33 complaints)12% Krëfel (31 complaints)8% Carrefour Belgium (21 complaints)8% Groupon (20 complaints)7% LCL Management (19 complaints)7% Makro Cash and Carry Belgium (18 complaints)7% Basic Fit Belgium (18 complaints)6% CoolBlue (17 complaints)5% Aldi (14 complaints)

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Referred complaints

254 ECC23 Ombudsfin14 Ombudsman for Insurances73 Telecommunication15 Energy4 Ombudsrail2 Postal sector5 Notary122 Construction sector53 Travel sector11 Federal Ombudsman11 Flemish Ombudsman7 Walloon Ombudsman31 Automoto

Inadmissibility

45 Bankruptcy10 Other entity14 Legal proceedings32 For information purposes12 Facts are over a year old12 Unidentifiable complaint153 Incomplete complaint

Results mediation files

162 Complaints stopped602 Global settlement 478 Recommendation

Recommendation followed

Recommendation partially followed

Recommendation not followed

No answer

19,5% 4,0% 18,8% 57,7%93 19 90 276

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