On 10 March 2016, the Constitutional Court (Grondwettelijk Hof/Cour constitutionnelle) held that a non-contractual civil damages claim based on an infringement of competition law cannot become time-barred before there is a final decision with res judicata character on the existence of a competition law infringement. Another interpretation of Article 2262bis, §1, second paragraph of the Belgian Civil Code (i.e., the general statute of limitations for a tort-based civil damages claim) would be in conflict with the principle of equal treatment.
The Constitutional Court explained that in a civil procedure the plaintiff carries the burden of proof and that the existence of a competition law infringement is essential for the establishment of a tort-based fault under civil law. According to the Court, the fact that a competition law infringement usually requires a complex factual and economic analysis of the available evidence makes this burden very heavy. The Court went on to consider that since the limitation period for bringing a damages claim already starts to run before there is a final decision on the existence of a competition law infringement, the plaintiff is compelled to initiate civil proceedings without being able to rely on a final decision as evidence of a tort-based fault. According to the Court, this hampers the plaintiff’s ability to bring an action for damages. The Court stressed that its judgment is in line with the new European Directive 2014/104/EU on antitrust damages actions (see, Article 10 of the Directive), even though the Directive has not yet been implemented in Belgium and does not have to be implemented until 27 December 2016.
The case will now return to the Commercial Court of Dendermonde, which had referred a question for a preliminary ruling to the Constitutional Court (See, VBB on Business Law, Volume 2014, No. 11, p. 6, available at www.vbb.com).
