CHAPTER 6. Enforcement SECTION 1. Injunctions Cease and Desist Order. Herman De Bauw Alex Tallon. Attorneys

243 CHAPTER 6 Enforcement SECTION 1 Injunctions Cease and Desist Order Herman De Bauw Alex Tallon Attorneys 1. Competent The President of the Commercial Court can issue a Cease and Desist order for infringements of the Code of Economic Law. He has jurisdiction over infringements of Book VI and XIV. He also has jurisdiction over infringements of Book XI intellectual property rights. Any claim must be brought before the President of the Commercial Court of the place of the defendant or the place where the infringement is committed or where it has (or may have) effect 1. If the infringement concerns an intellectual property right, only the President of the Commercial Court residing in the territory of a court of appeal has jurisdiction 2. Disputes concerning the infringement of a community trademark or a community industrial design must be brought before the President of the Commercial Court of Brussels 3. 2. Proceedings Against persons exercising liberal professions 4 and to the extent that an infringement of the Book XIV is concerned, the President of the Court of First Instance is competent to issue a Cease and Desist order for infringements. To commence proceedings for a Cease and Desist order, no prior notice of default requires to be issued against the infringing party. The case is tried in the same way as summary proceedings 5. However, the decision of the court is not a provisional decision but a decision on the merits. 1 2 3 Art. 624 Judicial Code; Pres. Commercial Court Nivelles. 15 December 1995, Jb.Hand.Med. 1995, 535; A. TALLON, De wet op de marktpraktijken procedures en sancties, Ghent, Larcier, 2012, 75. Art. 574(3), (15), (16), (17) and (18) juncto Art. 633 quinquies Judicial Code. Art. 574(11) and (14) juncto Art. 633quinquies Judicial Code. 4 See definition in Part I, Chapter 1 of this book. 5 Art. XVII.6 CEL and Art. XVII.18 CEL.

244 PART I THE COMMERCIAL PRACTICES ACT Criminal proceedings in respect of the same facts do not suspend proceedings before the President of the court of commerce. Appeals do not suspend the immediate enforceability of a Cease and Desist order 6. 3. Persons Who Can Bring Proceedings for a Cease and Desist Order A. Infringements of Book VI and Book XIV 7 The following persons may bring proceedings for a Cease and Desist order for infringements of Book VI and Book XIV of the Code of Economic Law 8 : any person having a legal interest; the Minister competent for the matter in dispute (usually the Minister responsible for economy) and the Director-General of the General Department for Control and Mediation of the Federal Public Service Economy, SMEs and Energy. However, neither the competent Minister nor the Director-General can bring proceedings for a Cease and Desist order for acts contrary to fair market practices that may prejudice an undertaking s professional interests; a professional authority, professional or inter-professional organisations, provided they are legal entities, to defend the interests of their members having a legal interest; consumer organisations, provided they are legal entities, represented within the Council for Consumption and recognised by the Minister responsible for the Economy. However, consumer organisations cannot bring proceedings for a Cease and Desist order for acts contrary to fair market practices that may prejudice an undertaking s professional interests. B. Infringements of Book XI Proceedings for Cease and Desist orders for infringements of intellectual property rights can be brought by any person who has legal standing to bring counterfeit proceedings under the clauses relating to the intellectual property right concerned 9. In case of copyright infringement or related right, the action based on Article XVII.14 (3) can be brought by any interested party, an authorised management company or a professional or inter-professional group possessing legal personality (Art. XVII.19 (2) CEL). In case of infringement of the right of the producer of databases, the action based on Article XVII.14 (3) can be brought by the persons entitled to institute infringement proceedings under the provisions relating to the right of the producer of database (Art. XVII.19 (3) CEL). 6 Ibid. 7 XVII. 7 CEL. 8 Art. XVII.7 CEL. Against persons exercising liberal professions, this proceeding may be brought by a mutual fund or a national union. 9 Art. XVII.19(1) CEL.

CHAPTER 6 ENFORCEMENT 245 4. Persons Against Whom Proceedings for a Cease and Desist Order Can Be Brought The proceedings must be brought against the undertaking committing the infringement. An undertaking is defined as any natural or legal person that sustainably pursues an economic aim, as well as the organisations of which he/ she/it is part 10. If the infringement concerns unlawful advertising, the claim must be brought against the advertiser. If the advertiser is not located in Belgium and has not appointed a representative in Belgium either, the claim can also be brought against, in the descending order, the publisher/producer, the printer or the manufacturer, the distributor and any person having wilfully contributed to the advertisement in question 11. A claim can also be brought against a principal for acts committed by his agent outside the latter s premises, if the agent has not identified himself and his identity could not reasonably have been known by the person bringing the claim 12. 5. Statute of Limitations A claim for a Cease and Desist order must be brought within one year of the date upon which the unlawful practice was stopped 13. 6. Content of the Cease and Desist Order A request to the President of the Commercial Court 14 is a request to establish the existence of an infringement of the Code of Economic Law and to issue a Cease and Desist order 15. The President of the Commercial Court cannot award damages. The Cease and Desist order must be formulated accurately. On the one hand, it may not be a mere repetition of the legal prohibition, and on the other, it may not be formulated so narrowly as to allow the infringer to by-pass the order with ease. The Cease and Desist order does not need to be limited to the specific act, but may be extended to all acts having an equivalent effect, provided that they are clearly described. Good faith is no defence against a request for a Cease and Desist order; it suffices that there be an infringement of the Book VI or Book XIV. The President of the Commercial Court may grant the infringing party an extension of time for terminating the infringement if the nature of the infringement justifies such an extension 16. 10 11 Art. I.1(1) CEL. Art. XVII.10 CEL. 12 XVII.11 CEL. 13 Art. XVII.5 CEL. 14 Or the President of the court of first instance in case of an infringement of Book XIV CEL. 15 Art. XVII.1 CEL. 16 Art. XVII.3 CEL.

246 PART I THE COMMERCIAL PRACTICES ACT If the infringement has ceased before the President of the Commercial Court has established the existence of the infringement, the President can still issue a Cease and Desist order as long as the risk of repetition of the infringement cannot be objectively excluded 17. 7. Specific Rules in Respect of Infringements of Intellectual Property Rights (Book XI) In the case of an infringement of an intellectual property right, the President can not only order the cessation of the infringement, he also has competence to impose measures (provided for in Article XI.334 (2) to (4) CEL) on the undertaking which has committed the infringement. Such measures must contribute to the cessation of the infringement or of its consequences. However, the President cannot impose measures to compensate for the damage caused by the infringement 18. If an intellectual property right that is protected in Belgium by a filing or registration is invoked in support of a claim or in defence against a claim, and the President of the Court finds that the intellectual property right in question is null and void or has expired, he declares the nullity or expiration of such right and orders the striking out of the filing or registration (Art. XVII.17 CEL). The question of whether this declaration is immediately enforceable is regulated by the laws concerning the intellectual property right concerned. 8. Private Penalties At the request of the plaintiff, the President of the Commercial Court may order the infringing party to pay private penalties to the successful plaintiff, if the person found guilty of an infringement fails to respect the Cease and Desist order. The amount is not meant to compensate the plaintiff for any damage suffered, but merely to ensure that the infringing party will comply with the order. The President of the Commercial Court may set a ceiling on such penalties. 9. Publication At the request of the plaintiff, the President of the Commercial Court may order the publication of his decision or a summary thereof 19. However, such a measure may only be ordered if it contributes to the cessation of the infringement or of its effect. The publication order is enforceable even if appealed. However, if the successful party proceeds with the publication and the Cease and Desist order or the publication order is subsequently overruled on appeal, he must compen- 17 Court of Cassation 14 November 1986, Arr. Court of Cassation. 1986-87, 349; Court of Cassation 29 May 2009, Jb.Hand.Med. 2009, 650. 18 XVII.16 CEL. 19 Art. XVII.4 CEL.

CHAPTER 6 ENFORCEMENT 247 sate the other party for the damage caused by the unjustified publication. The amount of such compensation is set by the President of the Commercial Court when ordering the publication of the decision. This can be appealed. SECTION 2 Administrative Actions Herman De Bauw Alex Tallon Attorneys 1. Warning An infringement of Book VI or Book XIV does not give rise to administrative fines. However, officers appointed by the Minister may issue warnings to the offender urging him to bring to a stop the forbidden act 20. The warning must be issued within three weeks of the forbidden act being established. The infringing party is informed by registered letter or by way of an official report handed over to him. The warning must include the following information 21 : the facts and the provision(s) referred to Article XV.2 (1) CEL that have been violated (such as the provisions of Book VI or Book XIV); the time period within which the infringing behaviour must be stopped; the statement that, if the warning is not complied with, court proceedings for a Cease and Desist order can be initiated, a settlement can be proposed, the public prosecutor can be informed or an administrative penalty can be imposed; the statement that the offender s commitment to bring the infringement to an end can be made public. 2. Settlement Proposal Certain officers appointed by the Minister can propose a settlement to the infringing party 22. If the offender pays the proposed amount in time, criminal proceedings can no longer be brought based on the same facts. The amount of the settlement proposal depends on the nature of the infringement. Acceptance of the settlement proposal does not imply acknowledgment of the infringement. 20 XV.31 CEL. 21 Ibid. 22 Art. XV.61 (1) CEL.

248 PART I THE COMMERCIAL PRACTICES ACT SECTION 3 Prosecution and Criminal Sanctions Herman De Bauw Alex Tallon Attorneys 1. Prosecution Certain officers appointed by the Minister are authorised to track and establish infringements of Book VI and Book XIV that constitute criminal offences or for which the Minister may initiate court proceedings for a Cease and Desist order 23. In both cases, the reports established by the officers have evidential value until proof to the contrary is produced (Art. XV.12 (1) CEL). The court must accept the facts as established in the report as long as it is not proved that the report is incorrect. Book XIV provides obligation for those officers to inform the professional control organisation for liberal professions. In tracking and establishing infringements, the officers have the following powers 24 : to enter workplaces and premises during normal opening hours and working hours, if this is necessary for fulfilling their tasks; to draw all useful conclusions, conduct any examination, test, research and gather any information they deem necessary to ensure that the provisions referred to in Article XV.2 (1) are met; to take samples free of charge (against a receipt) in order to determine the nature and composition of goods and to product the evidence of an infringement. To track and establish infringements referred to in Article XV.2 (1) CEL, certain officers can make findings by carrying images, regardless of medium, and by recording public telecommunications or communications or private telecommunications or communications. In accommodation spaces, officers must have a license issued by the examining magistrate. Those findings have evidential value until proof to the contrary is produced if conditions referred to in Article XV.4 (3) CEL are met. Finally, officers can use images from third parties if such persons have completed or obtained them legitimately 25. 23 Art. XV.2 133CEL. 24 Art. XV.3 CEL and XV.12 (1) (2) (7) CEL. 25 Art. XV.4 CEL.

CHAPTER 6 ENFORCEMENT 249 The officers work under the supervision of the public prosecutor 26. The King may allocate additional specific skills to the officers in order to track and establish infringements. The royal decree must be confirmed by law within eighteen months of its entry into force 27. 2. Seizure When the officers referred to in Article XV.2 CEL find an infringement, they may seize: goods that are the object of an infringement; the means of production, processing and transportation ( ) of goods that are the object of an infringement; all other objects that may have been used to commit the offence; goods of the same type and purpose as those that are the object of an infringement. In addition, certain officers appointed by the Minister can seize goods as a protective measure 28. The seizure is automatically lifted by a definitive judgment that brings an end to the prosecution or dismissed the case. The public prosecutor can also lift the seizure if the offender decides not to offer the goods in the circumstances that gave rise to the prosecution 29. 3. Criminal Sanctions A. Priority of Cease and Desist Proceedings If the facts of proceedings introduced before the criminal court are simultaneously the subject of Cease and Desist proceedings, then the proceedings before the criminal judge are suspended until a judgment is issued in the Cease and Desist proceedings 30. The criminal court is bound by the judgment in the Cease and Desist proceedings. B. Overview of Sanctions 1. Infringements Subject to Fines Infringements of the rules concerning the following matters are punishable with sanctions of the second level (i.e. fines ranging from 26 to 10,000, to be multiplied by 6) 31 : 1 Price indications (Art. VI.3 to Art. VI.7 and Articles XIV.4 to XIV.8/2 CEL); 26 Art. XV.6 CEL. 27 Art. XV.10 CEL. 28 Art. XV.15 CEL. 29 Art. XV.5 CEL. 30 Art. XV.71 CEL. 31 Art. XV.70, XV.83 and XV.124 CEL.

250 PART I THE COMMERCIAL PRACTICES ACT 2 Designations, compositions and labelling of goods and services (Art. VI.8- VI.10 CEL); 3 Indications of quantity (Art. VI.11 to VI.16 CEL); 4 References to formerly applied prices (Art. VI.18 to VI.21 and Articles XIV.10 and XIV.11 CEL); 5 Clearance sales (Art. VI.22 to VI.23 CEL); 6 Seasonal and pre-seasonal sales (Art. VI.25 to VI.29 CEL); 7 Prohibition on offering a consumer a bill of exchange for signature (Art. VI.39 and XIV.20 CEL); 8 Agreements entered into at a distance (Art. VI.45 to VI.63 and Articles XIV.27 to XIV.37 CEL); 9 Agreements entered into outside the premises of the company (Art. VI.64 to VI.74 and Articles XIV.39 to XIV.47 CEL); 10 The obligation for ministerial officers to refuse, in certain circumstances, to cooperate in public auctions (Art. VI.79 CEL); 11 Order forms and documentary evidence (Art. VI.88 to VI.89 and Articles XIV.55 and XIV.56 CEL); 12 Collective consumer agreements (Art. VI.118 CEL); 13 Certain unfair trade practices towards consumers (Art. VI.95, VI.100, VI.103, XIV.62, XIV.67 and XIV.70 CEL with the exception of Articles VI.100 (12), (14), (16) and (17), VI.103 (1), (2) and (8), XIV.67 (12) (14) (16) and (17) and XIV.70 (1) (2) (8) CEL); 14 Soliciting advertisers by means of unfair market practices (Art. VI.107 and XIV.74 CEL); 15 Forced sales (Art. VI.108 XIV.75 CEL); 16 Unsolicited communications (Art. VI.110 to VI.115 and XIV.77 to XIV.82 CEL); 17 Orders regarding financial services (Art. VI.1(2) CEL); 18 European Regulations replacing provisions of Books VI and XIV. 2. Infringements Subject to Imprisonment and/or Fines The following acts are punishable with sanctions of the sixth level 32 (i.e. fines ranging from 500 to 100,000, to be multiplied by 6 and/or imprisonment from 1 to 5 years 33 ): (amounts to be multiplied by 6): making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of a consumer or his family if the consumer does not purchase a certain product (Art. VI.100 (12) and XIV.67 (12) CEL); establishing, operating or promoting a pyramid promotional scheme whereby a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other 32 Art. XV.86 and XV.124/3 CEL. 33 Art. XV.70 CEL.

CHAPTER 6 ENFORCEMENT 251 consumers into the scheme rather than from the sale or consumption of products (Articles. VI.100 (14) and XIV 67 (14) CEL); claiming that products are capable of facilitating winning in games of chance (Art. VI.100 (16) and XIV.67 (16) CEL); falsely claiming that a product is capable of curing illnesses, dysfunctions or malformations (Art. VI.100 (17) and XVI.67 (17) CEL); creating the impression that the consumer cannot leave the premises until a contract is formed (Art. VI.103(1) and XIV.70 (1) CEL); conducting personal visits to a consumer s home, ignoring the consumer s request to leave or not to return except in circumstances and to the extent justified, under national law, in order to enforce a contractual obligation (Art. VI.103(2) and XIV.70 (2)); creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either there is no prize or other equivalent benefit, or taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost (Art. VI.103(8) and XIV.70 (8) CEL); establishing, operating or promoting a pyramid system whereby an undertaking gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other undertakings into the scheme rather than from the sale or the consumption of products (Art. VI.109 and XIV.76 CEL). 3. Bad Faith Infringements of Book VI and Book XIV, other than those listed above, constitute a criminal offence, with the exception of infringements referred to in Article VI.104 and Article XIV.71 CEL, only if committed in bad faith. Such infringements are punishable by means of a third level sanction (i.e. a fine ranging from 26 up to 25,000, to be multiplied by 6) 34. The notion of bad faith is not defined in the Code of Economic Law but there is considered to be bad faith when, given the factual circumstances in which an act is committed, its author could not be in any doubt as to its unlawful nature. Bad faith does not require any particular intent. It suffices that the party concerned knowingly infringes the law to the detriment of its competitors or consumers. According to the Court of Cassation, in the case of an infringement by a company, the intent is sufficiently established if its leading officers knew of the intent to commit the unlawful act and consented thereto. 34 Art. XV.84, and XV.70 and XV.124/1 CEL

252 PART I THE COMMERCIAL PRACTICES ACT 4. Infringements Not Subject to Fines Infringements of the prohibition to commit acts of unfair market practices which prejudice or may prejudice the professional interests of undertakings are not subject to criminal sanction. 5. Other Acts Subject to Sanctions The following acts are also punishable with a third level sanction (i.e. fines ranging from 26 up to 25,000, (amounts to be multiplied by 6) 35 : Non-compliance with a Cease and Desist order. If this infringement occurs within five years of a definitive judgment and it concerns the same infringement, then the fine is doubled 36 ; Deliberately destroying, hiding or ripping the publication of a court order. C. Publication of the Judgment and Forfeiture The criminal court can order the publication of its judgment (or a summary thereof) at the offender s expense. It can also order the forfeiture of any proceeds made from the illicit act 37. D. Companies, Associations and Members Companies, associations and their members can be summoned before the criminal court for infringements of Book VI or Book XIV of the Code of Economic Law. Furthermore, companies and associations with legal personality are civilly liable for damages, fines, costs, forfeitures, refunds and pecuniary sanctions pronounced against their bodies, officers and employees. The same applies to the members of commercial associations without legal personality, if the infringement is made by a partner, officer or employee and is related to an act performed in relation to the association s activities. However, a partner who is civilly liable is personally liable only for the illegal profits from which he or she has benefited 38. E. Application of the Criminal Code As a general rule, the provisions of Book I of the Criminal code apply to infringements of Book VI or Book XIV of the Code of Economic Law. However, contrary to the Criminal code, the judge who pronounces a conviction as a result of an infringement of Book VI or Book XIV can decide whether or not forfeiture must be declared. This exception no longer applies if the crime or offence is repeated 39. 35 Art. XV.85, XV.70 and XV.124/2 CEL. 36 Art. XV.72 CEL. 37 Art. XV.130 and XV.131 CEL. 38 Art. XV.73 CEL. 39 Art. XV.69 CEL.

CHAPTER 6 ENFORCEMENT 253 SECTION 4 Out-of-Court Settlement of Consumer Disputes Alex Tallon Attorney Out-of-court settlement of consumer disputes was introduced in Book XVI of the Code of Economic Law by the Act of 4 April 2014. Most of the provisions came into force on 13 May 2014. Article I.19 (3) CEL defines the out-of-court settlement of consumer disputes as any intervention by an entity created by the authorities or an independent and private entity which proposes or imposes a solution or brings the parties together for the resolution of a consumer dispute. 1. Handling of complaints by companies Companies must provide consumers with the information listed in Article III.74 (duty of information and transparency) and, if a complaint handling service exists, telephone and fax number of this service to allow to consumer to file a complaint or request information regarding the execution of a signed contract 40. The company is required to respond to complaints in the shortest possible time and must be diligent to find a satisfactory solution 41. If a consumer dispute does not find a solution in reasonable time, the consumer may apply to a qualified entity or mediation service for consumers. 2. Handling of complaints by the mediation service for consumers or by qualified entities of out-of-court settlement of consumer disputes A. The Mediation Service for Consumers Book XVI of the Code of Economic Law establishes a mediation service for consumers (autonomous service having legal personality) 42. Its missions are 43 : 1 to inform consumers and companies on their rights and obligations, in particular on the possibilities of out-of-court settlement of consumer disputes (see Art. XVI.13 to XVI.14 CEL); 2 to receive any request of an out-of-court settlement of a consumer dispute and, in that case, to pass it to another qualified entity competent in this matter or to deal with it itself (see Art. XVI.15 to XVI.21 CEL); 3 to intervene in any request of an out-of-court settlement of a consumer dispute for which no qualified entity is competent (see Art. XVI.15 (3) CEL). 40 41 Art. XVI.2 CEL. Art. XVI.3 CEL. 42 Art. XVI.5 CEL. 43 Art. XVI.6 CEL.

254 PART I THE COMMERCIAL PRACTICES ACT The mediation service for consumers is managed and represented by a management committee composed of ten members from other mediation services 44. B. Entities of Out-of-Court Settlement of Consumer Disputes These entities under Title 4 of Book XVI are defined in Article I.19 (4) CEL. They must meet the conditions set out in Article XVI.25 CEL. A list of these entities is established by the Federal Public Service for the Economy, SMEs, The Middle Class and Energy 45. As with the mediation service for consumers, requirements of independence, impartiality and competence are imposed in order to ensure the right to a fair trial 46. C. Handling of complaints When the mediation service for consumers receives an application for the outof-court settlement of a consumer dispute, it transmits it to a competent qualified entity or, if no qualified entity is competent, deals itself with the application 47. The procedural rules for handling complaints are set out in Article XVI.16 CEL for the mediation service for consumers and in Article XVI.25 (1) CEL for qualified entities. In both cases, these organisations have to inform the parties of the receipt of the complete application 48 and, within three weeks thereof, of the decision or not to continue to handle the complaint 49. If the complaint is handled, the outcome of the settlement must be communicated on a durable support within 90 days of receipt of the complete request, except in case of exceptional extension 50. The limitation periods of general law shall be suspended from the date of receipt of the complete application until the day at which the organisation communicates its refusal to handle the application or the result of the settlement. As from the date of communication of the receipt of the complete application, any recovery procedure is also suspended 51. Information obtained as part of the out-of-court settlement of a consumer dispute is treated confidentially 52. 44 Art. XVI.8 CEL. 45 Art. XVI.24 (1) CEL. 46 Art. XVI.23 and XVI.26 CEL. 47 Art. XVI.15 CEL. 48 Art. XVI. 16 (1) and Art. XVI.25 (1), 6, 7, 8 and 10 CEL. 49 Art. XVI. 16 (2) to (4) and Art. XVI.25 (1) 7, 8 and 10 CEL. 50 Art. XVI. 17 and Art. XVI.25 (1) 9 and 13 CEL. 51 Art. XVI. 18 and XVI.27 CEL. 52 Art. XVI. 20 and XVI.25 (1) 12 CEL.

CHAPTER 6 ENFORCEMENT 255 Consumers may benefit from the services of the mediation service free of charge and from services of qualified entities free of charge as well or at reduced costs 53. SECTION 5 Class Action Alex Tallon Attorney The Act of 28 March 2014 introduced the rules on Class Actions in Book XVII of the Code of Economic Law. These rules came into force on 1 September 2014. The Class Action is defined in Article I.21 3 as the action which is intended to repair collective harm. 1. General Provisions A. Competent Court The courts of Brussels have jurisdiction over Class Actions. B. Admissibility conditions A Class Action is admissible if the three following conditions of Article XVII.36 of the Code of Economic Law are met: The action concerns a potential infringement by an undertaking (B2C relation) of its contractual obligations, of an European Regulation or of an Act referred to in Article XVII.37 CEL or their execution orders. The action must be introduced by an applicant who meets the requirements set out in Article XVII.39 and which is considered adequate by the judge. This applicant is a representative of the group which is composed by all consumers who individually have suffered damage by a common cause and who have explicitly outed themselves when they wanted to be part of the group (opt in) or those who did not explicitly express their will to be excluded (opt out) within the deadline set by the judge 54. The following may act as a representative of the group: (i) an association that defends the interests of consumers and is recognised thereto in accordance with the criteria set out in Article XVII.39 CEL, (ii) an association with legal personality that is recognised by the Minister to act as a representa- 53 Art. XVI.21 and XVI.25 (1) 5 CEL. 54 Art. XVII.38 (1) CEL.

256 PART I THE COMMERCIAL PRACTICES ACT tive and which does not pursue a financial gain in sustainable manner or (iii) the mediation service for consumers 55. The Class Action must appear to be more efficient than an ordinary action. The Class Action does not preclude a member of the group and the defendant to participate for the same dispute in an out-of-court settlement of consumer disputes 56. The judge rules on the admissibility of the Class Action even when proceedings are initiated before a criminal court for the same facts 57. 2. Proceedings A. Admissibility Conditions A Class Action is introduced by an application at the registry of the Court of first instance or the Commercial Court 58. This application can be a joint application for the approval of a collective reparation agreement (see below) 59. Within two months of filing the application, the judge rules on the application for approval of the collective reparation agreement 60 or on the admissibility of the Class Action having regard to the admissibility requirements of Article XVII. 36 CEL 61. B. Collective Reparation Agreement For a period determined by the court (which may be extended only once at the joint request of the parties), the representative of the group and the defendant can negotiate an agreement on compensation for a collective damage 62. Article XVII.45 (3) imposes the topics which this agreement must in any case contain. Pending proceedings on the substance and for as long as the judge has not taken any of the decisions listed in Article XVII 53 CEL, parties may at any time reach a collective reparation agreement and submit it to the judge for approval 63. In the event that the parties come to an agreement, any of them has the right to submit the agreement for approval to the judge 64. The agreement is deposited to the registry to verify its compliance with Article XVII.45 (3) 65. After further 55 Art. XVII.39 CEL. 56 Art. XVII.68 CEL. 57 Art. XVII.67 CEL. 58 Art. XVII.42 (1) CEL. 59 Art. XVII.42 (2) CEL. 60 Art. XVII.44 CEL. 61 Art. XVII.43 CEL. 62 Art. XVII.45 (1) and (2) CEL. 63 Art. XVII.56 CEL. 64 Art. XVII.47 CEL. 65 Art. XVII.49 (1) CEL.

CHAPTER 6 ENFORCEMENT 257 examination by the judge the agreement may be approved if it is complete (otherwise parties can be granted a deadline to complete it) 66. The approval has the effect of a judgment within the meaning of Article 1043 of the Judicial Code and binds all members of the group 67. However, it does not constitute the defendant s recognition of liability or guilt 68. C. Litigation Procedure In absence of an agreement in accordance with Articles XVII.43 (2) 8 XVII.49 (1) or XVII.49 (2), the Class Action proceedings will be pursued by the judge 69. Within one month, the registry summons the representative of the group and the defendant at the hearing fixed by the judge to determine the deadlines for further examination and for decision of the case 70. If the judge concludes on a collective reparation obligation on the part of the defendant, his decision must at least include the items listed in Article XVII.54 CEL. If he rejects the collective reparation, his decision must refer to the admissibility criteria of Article XVII.43 CEL. His decision is binding on all members of the group 71 and is transmitted by the registry to the Belgian Official Gazette and the FPS for Economy, SMEs, The Middle Class and Energy for publication 72. D. Execution of the Agreement or the Decision In his decision, the judge appoints a liquidator 73 (in accordance with Article XVII.57) which is responsible for the execution of the agreement or of the decision for repair. To this end, the liquidator prepares a provisional list of members of the group who wish to obtain reparation under the opt-in and opt-out systems and submits it to the judge, to the representative of the group and to the defendant 74. This list can be contested 75. At the end of the hearing where the parties were heard on the provisional list, the judge establishes the final list (only the consumers which are on this list will be entitled to compensation under the agreement or decision) 76. 66 Art. XVII.49 (2) CEL. 67 Art. XVII.49 (4) CEL. 68 Art. XVII.51 CEL. 69 Art. XVII.52 CEL. 70 Art. XVII.53 CEL. 71 Art. XVII.54 CEL. 72 Art. XVII.55 CEL. 73 Art. XVII.54 (2) CEL. 74 Art. XVII.58 (1) (2) CEL. 75 Art. XVII.58 (3) CEL. 76 Art. XVII.58 (4) (5) CEL.

258 PART I THE COMMERCIAL PRACTICES ACT The defendant carries out his obligation to compensate in kind or by equivalent under the supervision of the liquidator in accordance to what has been agreed in the agreement or stipulated in the decision 77. When the agreement or the decision is fully executed, the liquidator sends a final report to the judge for his approval. Upon the judge s approval of this report the execution procedure is terminated 78. 77 Art. XVII.59 CEL. 78 Art. XVII. 61 CEL.