by Philip Bentley QC and Veronica Pinotti

The European Commission was expected to unveil its plans for a proposed directive on “class actions in antitrust affairs” on 7 October 2009, but at the last minute this was delayed, no doubt due to the far-reaching consequences of the proposal and staunch political and industry opposition in some quarters.   

If adopted into European Union legislation, such a directive would oblige the 27 EU Member States to adopt legislation providing for class actions in antitrust matters.  This would impinge on private law and court procedure in the Member States, thus going well beyond the mere administrative enforcement of Articles 81 and 82 of the European Community Treaty.  For this reason, it is possible that such an innovation can only be adopted as a joint legislative measure of both the EU Council and the European Parliament, and not just as a measure of the EU Council adopted after “consulting” the Parliament.  The possibility of an increased role of the Parliament has no doubt encouraged the proposal’s opponents.

Judging by the Commission’s White Paper published in April 2008, it seems that the idea was to create “opt-in” collective actions, in which individuals, including indirect purchasers, could decide to combine their claims into one single action and representative actions on behalf of “identified victims” brought by “qualified entities” (e.g., consumer associations or similar organizations) which would be either officially designated in advance or certified for a particular antitrust infringement by a Member State on an ad hoc basis.

While the Commission pauses to consider its next step, some Member States are proceeding with class action legislation on their own initiative, including, most recently, Belgium and Italy.

Belgium

A controversial pre-draft bill that would introduce class actions into the Belgian legal system was recently made public.  This proposal does not focus on antitrust, in particular, but would of course be useable in such cases.

Recent “monster” trials, which proved to be almost unmanageable for the Belgian courts, and political pressure from consumer organisations have spurred the Ministries of Justice and of Consumer Affairs to this pre-draft bill.  As with the European Commission’s initiative, the business community has spoken out against the pre-draft bill on business, political, legal and technical grounds.

The proposed procedure would be divided into two phases: an admissibility phase and a phase in which the Court of Appeals would decide on the merits of the claim.  An action could be started unilaterally by writ or by “litigation” agreement among the claimants and the defendants, but in both cases the claimants would be required to nominate a sole legal representative for the conduct of the court proceedings.

In the admissibility phase, the court would determine whether the case in actuality concerned “mass-damage” and would define the class, in the case of an action brought by writ, or give or withhold approbation in the case of an action brought by litigation agreement.  The Belgian approach favours an “opt-out” system unless the court or the litigation agreement [...]

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