BELGIUM ANTITRUST DAMAGES ACTIONS - ICC COMPENDIUM OF - International Chamber of Commerce
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ICC COMPENDIUM OF
ANTITRUST DAMAGES ACTIONS
BELGIUM
Court decisions
in key jurisdictionsICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
©2021, International Chamber of Commerce (ICC)
This chapter is part of the ICC Compendium of Antitrust Damages Actions (2021) published
by ICC.
ICC holds all copyright and other intellectual property rights in this collective work, and
encourages its reproduction and dissemination subject to the following:
b ICC must be cited as the source and copyright holder mentioning the title of the
document, © International Chamber of Commerce (ICC), and the publication year.
b Express written permission must be obtained for any modification, adaptation or
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b The work may not be reproduced or made available on websites except through a link
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Permission can be requested from ICC through ipmanagement@iccwbo.org.
International Chamber of Commerce
33-43 avenue du Président Wilson
75116 Paris
France
ICC Publication No. KS101E
2BELGIUM
Introduction
This chapter is part of the ICC Compendium of Antitrust Damages Actions (the
“Compendium”) which can be read in full on the ICC website at www.iccwbo.org.
Designed to provide decision-makers with a comparative overview of the issues most
frequently arising in private antitrust litigation in key jurisdictions, the Compendium
includes an unprecedented collection of decisions issued in the same jurisdictions. This
database is the essential complement to the overviews for a comparative approach and
will allow a better understanding of the rules presented in the compendium. Each case
summary will provide users with a brief description of the facts of the case and outline
the solutions brought by the courts to the issues raised by the case with regard to the
topics addressed in the overviews. Rather than performing keyword searches through the
common online databases in each jurisdiction, antitrust practitioners and enforcers will have
all key decisions at hand. Courts will be able to see what other courts in other jurisdictions
have decided on a given issue, which may contribute to a greater consistency and, within
the European Union, to enhance integration. This compendium also intends to provide
competition authorities with a general view on the consequences of their decisions.
Methodology for the selection of cases
In Belgium, the decisions and case law of the national courts are only published in legal
journals. In addition, only selected cases are published. Therefore, there is a general lack of
information as regards the use of damages claims in court, the amounts claimed, and main
obstacles for a successful claims for damages for competition law infringements in Belgium.
The following cases were selected on the basis of a review relevant legal journals.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 3ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: Belgium
Case Name and Number: Review Toepassingen van Communicatie BVBA / De Schepper J. and
Raad voor de Mededinging (15-2-2008)
Date of judgment: 15 February 2008
Economic activity (NACE Code): M.71.1.1 — Architectural activities
Court: Court of Appeal, Gent Was pass on raised (yes/no)? No
Claimants: Claimant (not named) (If in EU) Was the EU Damages Directive
referred to/relied upon (and if so, for
procedural or substantive provisions)? No
Defendants: De Schepper (association of Were damages awarded (if so, how
undertakings) much and to whom)? If not, why not
(e.g. lack of standing, causal link)? Was
there another outcome or remedy? Yes.
Damages of EUR 4,289 were awarded to
Claimant
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe Not mentioned
current status/outcome: No
Key Legal issues: Is the dispute likely to be settled
privately? No
• Mistake as a ground for avoidance of a
contract on the basis of a competition
law infringement that the consumer
was unaware of at time of conclusion
of the contract
Direct or indirect claims? Direct Method of calculation of damages: Not
mentioned (although it is mentioned that
the calculation was simply made by the
judge).
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Gerrit Oosterhuis,
Partner, Houthoff, g.oosterhuis@houthoff.
com
4 INTERNATIONAL CHAMBER OF COMMERCE (ICC)BELGIUM
Follow-on (EC or NCA?) or stand-
alone? Standalone. Interestingly, after
this decision, a complaint was filed to
the Belgian Competition Authority and
after investigation, the association of
undertakings was held responsible for
the infringement at hand (although it
could not be fined due to restrictions in
the law at the time for associations of
undertakings).
Brief summary of facts
An association of undertakings (De Schepper) agreed on a certain amount of ‘honorary
wages’ based on a fixed percentage of costs for an architectural project: the deontological
norm. Claimant agreed on the 12% fee, as established in the norm, unaware that it infringed
competition law. When Defendant claimed payment of the fee, Claimant refused and
submitted that the norm was illegal and that therefore the contract could be avoided on the
ground of mistake.
Brief summary of judgment
Claimant is entitled to damages, because it was found that this agreement on the
deontological norm is an infringement of Article 2(1) Act on the Protection of Economic
Competition. The fact that Defendant sent an annex with the deontological standard
together with the agreement, even though Claimant expressly rejected the same
deontological norm in the contract, pressurised Claimant to believe that this norm entailed
an obligation. Claimant was unaware of the illegality of the norm at time of conclusion of
the contract, and therefore, the contract can be avoided on the ground of mistake.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 5ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: Belgium
Case Name and Number: Europese Commissie/Otis e.a. (A.R. A/08/06816) (24-11-2014)
Date of judgment: 24 November 2014
Economic activity (NACE Code): C.28.22 — Manufacture of lifting and handling equipment
Court: Commercial Court, Brussels Was pass on raised (yes/no)? No
Claimants: European Union (specifically (If in EU) Was the EU Damages Directive
the European Commission) referred to/relied upon (and if so, for
procedural or substantive provisions)?
No. The Court refers to the Proposal for
the EU Damages Directive, but expressly
rejects application thereof, since the
Directive was not signed into law at the
time of initiation of the proceedings before
the Court.
Defendants: Otis, Kone, Schindler, Thyssen Were damages awarded (if so, how
Krupp much and to whom)? If not, why not
(e.g. lack of standing, causal link)? Was
there another outcome or remedy? No.
The Court decided Claimant insufficiently
proved its damages and the causal link.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe EUR 6,134,451
current status/outcome: No
Key Legal issues: Is the dispute likely to be settled
privately? No
• Substantiation of damages and a
causal link
Direct or indirect claims? Direct Method of calculation of damages: Not
relevant in this case since no damages
were awarded.
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Gerrit Oosterhuis,
Partner, Houthoff, g.oosterhuis@houthoff.
com
Follow-on (EC or NCA?) or stand-alone?
Follow — on (EC, Case COMP/E-138.823)
6 INTERNATIONAL CHAMBER OF COMMERCE (ICC)BELGIUM
Brief summary of facts
Four manufacturers of elevators concluded price-fixing agreements in Belgium for new
elevator systems and maintenance contracts between 1996 and 2004. The cartelists divided
the market by allocating tenders and maintenance contracts. This infringement formed
the basis for the claim for damages by the European Commission, that had entered into
maintenance contracts for its elevators with the infringing parties.
Brief summary of judgment
The claim for damages was dismissed. Under Belgian law, Claimant must provide proof in
order for the Court to establish the wrongful act, the damage incurred, and the causal link
between the two. A Commission decision that establishes an infringement of then article
81 TEC is sufficient proof of the wrongful act. The legal test for the existence and extent of
damages is that there must be a high degree of probability, to the extent that one does not
have to seriously consider the opposite. It is in principle sufficient that there is a condition
sine qua non link between the ground for liability and the damages. The Commission’s
decision relied upon does not confirm a price-increasing effect of the infringement. It merely
establishes that the agreements between defendants were aimed at price inflation, but it
does not prove that they also succeeded in this goal. Moreover, the ‘normal circumstances’
also do not prove this, as was confirmed in a study ordered by the Commission, that in
cases of bid-rigging, an effect on the price cannot be assumed. The Court thus concluded
that insufficient evidence is provided to conclude that damages have been incurred as a
result of the mistake.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 7ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: Belgium
Case Name and Number: Belgische Staat/liftenproducenten (24-04-2015)
Date of judgment: 24 April 2015
Economic activity (NACE Code): C.28.22 — Manufacture of lifting and handling equipment
Court: Commercial Court, Brussels Was pass on raised (yes/no)? No
Claimants: Belgische Staat/Regie der (If in EU) Was the EU Damages Directive
Gebouwen referred to/relied upon (and if so, for
procedural or substantive provisions)?
No. The Court refers to the Proposal for
the EU Damages Directive, but expressly
rejects application thereof, since the
Directive was not transposed into
Belgian law at the time of initiation of the
proceedings before the Court.
Defendants: Otis, Kone, Schindler, Thyssen Were damages awarded (if so, how much
Krupp and to whom)? If not, why not (e.g. lack
of standing, causal link)? Was there
another outcome or remedy? No. The
Court decided the claimant insufficiently
proved its damages and the causal link.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe The specific amount of damages was not
current status/outcome: Unclear mentioned but the claimants appointed
an independent (and specialised) party
(Oxera) to support the claim.
Key Legal issues: Is the dispute likely to be settled
privately? No
• Substantiation of damages and a
causal link
Direct or indirect claims? Direct Method of calculation of damages:
Irrelevant as no damages were awarded.
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Gerrit Oosterhuis,
Partner, Houthoff, g.oosterhuis@houthoff.
com
8 INTERNATIONAL CHAMBER OF COMMERCE (ICC)BELGIUM
Follow-on (EC or NCA?) or stand-alone?
Follow-on (EC, Case COMP/E-1/38.823)
Brief summary of facts
Four manufacturers of elevators concluded price-fixing agreements in Belgium for new
elevator systems and maintenance contracts between 1996 and 2004. The cartelists divided
the market by allocating tenders and maintenance contracts. This infringement formed
the basis for the claim for damages by the Belgian State and Flemish Community that had
bought elevators and had entered into maintenance contracts for its elevators with the
infringing parties.
Brief summary of judgment
It is for the claimant to provide evidence for the fact that they paid an increased price
for the products/services. The Commission decision at hand did not establish a price-
increasing agreement, but merely a market-sharing agreement. Therefore, it does not
prove the wrongful act. The claimant does not provide concrete evidence for the sine qua
non link required and the damage. It should have pointed to specific contracts in which it
incurred the damages. The Court thus concluded that the claimant had not proven that the
agreements with the manufacturers led to damages.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 9ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS
Country: Belgium
Case Name and Number: Herman Verboven e.a. / Honda Motor Europe Logistics (23-3-2017)
Date of judgment: 23 March 2017
Economic activity (NACE Code): G.45 — Wholesale and retail trade and repair of motor vehicles
and motorcycles
Court: Commercial Court, Gent Was pass on raised (yes/no)? Yes
Claimants: Herman Verboven, BVBA (If in EU) Was the EU Damages Directive
Occasiemarkt, NV Erx, BVBA Fraussen, NV referred to/relied upon (and if so, for
Delta Motorcycle, NV Motorshop Desmet procedural or substantive provisions)?
R Yes
Defendants: Honda Motor Europe Were damages awarded (if so, how
Logistics much and to whom)? If not, why not
(e.g. lack of standing, causal link)? Was
there another outcome or remedy? Yes.
Damages of EUR 20,000 were awarded to
each of the six claimants.
Is/was the case subject to appeal (yes/ Amount of damages initially requested:
pending/no)? If yes, briefly describe The claimants only requested the
current status/outcome: No compensation of their damage. They
also requested expert advice in order to
calculate the damage they suffered.
Key Legal issues: Is the dispute likely to be settled
privately? No
• Limitation period
• Subjective element of a mistake
• Passing-on
Direct or indirect claims? Direct Method of calculation of damages:
Calculation ex aequo et bono (this is a
method used when the amount of the
damages cannot be calculated with
precision. In this scenario, the judge may
use his discretion to provide a damages
amount that is considered “fair”.
Individual or collective claims? Individual Name and contact details of lawyer who
has drafted summary: Gerrit Oosterhuis,
Partner, Houthoff, g.oosterhuis@houthoff.
com
10 INTERNATIONAL CHAMBER OF COMMERCE (ICC)BELGIUM
Follow-on (EC or NCA?) or stand-alone?
Follow-on (NCA, Decision of the BCA of 31
January 1999, B.S. 13 March 1999. p. 8279-
8281)
Brief summary of facts
The claimants are independent importers of motorcycles of different brands. Honda
required importers to obtain a certificate of conformity from Honda for each motorcycle
they wanted to import, to ensure that each motorcycle was in conformity with the approved
standard type. It only allowed authorised Honda distributors to request a certificate. This
system of certification was in place from 1991 until 1996.
Brief summary of judgment
The Belgian Competition Authority found that the Honda entity that issued certificates in
Belgium, abused its dominant position by operating its certification system. The claimants
filed for follow-on damages. The limitation period does not start to run until there is a final
and conclusive decision that establishes a competition infringement. Since an objective
wrongfulness was established, the defendant must prove that there is no subjective element
but failed to do so. The damages are for example caused by the fact that Honda employed
a limitation of two motorcycles per application for a certificate, and by the obligation to
subject the motorcycle to a sound test. According to the court, the claimants sufficiently
proved that the infringement was the cause of the damages incurred. The damages could
not be calculated or estimated and were thus established on grounds of fairness.
INTERNATIONAL CHAMBER OF COMMERCE (ICC) 11ICC COMPENDIUM OF ANTITRUST DAMAGES ACTIONS ABOUT THE INTERNATIONAL CHAMBER OF COMMERCE (ICC) The International Chamber of Commerce (ICC) is the institutional representative of more than 45 million companies in over 100 countries. ICC’s core mission is to make business work for everyone, every day, everywhere. Through a unique mix of advocacy, solutions and standard setting, we promote international trade, responsible business conduct and a global approach to regulation, in addition to providing market-leading dispute resolution services. Our members include many of the world’s leading companies, SMEs, business associations and local chambers of commerce. 33-43 avenue du Président Wilson, 75116 Paris, France T +33 (0) 1 49 53 28 28 E icc@iccwbo.org www.iccwbo.org @iccwbo ICC Publication: KS101E
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