Actions for non-material damages following (alleged) infringements of the General Data Protection Regulation (GDPR) are increasingly being brought before courts across Europe. But legal requirements for the recognition of non-material damages are still to a large extent unclear.
In our new blog post series, we explain the situation in several countries across Europe (see our introduction). Please find out below about GDPR damages claims in Belgium.
The Belgian law on class actions of 28 March 2014 (the Class Action Law) allows groups of consumers or SMEs to claim damages for potential infringements of a company’s contractual obligations, or of the laws set out exhaustively in the Class Action Law – including the GDPR.
Claims under the Class Action Law can only be brought by authorised representatives on behalf of a group of injured parties. One option for organisations to qualify as an authorised representative is to obtain approval in this capacity from the Minister of Economy. It is not required for organisations to be established in Belgium to obtain such approval. For example, NOYB was approved as an authorised representative by the Minister in 2018.
The Class Action Law requires that, to be admissible before the courts, the class action should be more efficient than a classical action. If an action is found to be admissible, the judge will decide if the group of injured parties will be composed under an opt-in mechanism (ie only consumers who have suffered collective harm and expressly notify their intention to belong to the action) or an opt-out mechanism (ie all consumers that have suffered collective harm and do not expressly notify their intention to be excluded from the action).
The Class Action Law further requires parties to try to amicably resolve the case before the action is assessed on the merits by the court.
Since the entry into force of the Class Action Law, only a limited number of claims have been initiated in Belgium – none of which relating to GDPR infringements. However, it is worth noting that, in 2018, the consumer organisation Test Aankoop / Test-Achats started an initiative for individuals to sign up to a petition to eventually initiate a class action against an US tech company. In particular, Test Aankoop / Test Achats alleged that the company had infringed applicable data protection laws, unfair competition and commercial practices laws, consumer laws, contract laws and privacy laws in light of the Cambridge Analytica scandal. According to news outlets, Test Aankoop / Test-Achats demanded €200 in damages for each user who joined the claim. This case was settled in 2021 after Test Aankoop / Test Achats, together with other European consumer organisations, had set up a three-year partnership with the company aiming to “improve consumers’ lives in the digital world and create added value for them”.
Belgium has still not transposed the EU-RAD.
The next blog post in our data and tech mass claims series will focus on Italy.
