Flip Petillion has written an extensive article explaining the need for an amendment of the Belgian legal framework providing for the reimbursement of legal costs made by the successful party in court proceedings.
The article is published in the special edition of legal journal RABG of which Flip is main editor. RABG is published on a bi-weekly basis.
Flip will present his views at a colloquium that is held on 26 April 2018 and that is organised by Belgian leading legal publisher Larcier.
You can read more on the colloquium here.
The “loser pays” principle, according to which the unsuccessful party must cover the costs, is the general rule, also in Belgium. However, Belgian cost recovery rules are often criticized because of its flat-rate procedural cost indemnity (“rechtsplegingsvergoeding” / “indemnité de procedure”) which is often insufficient to cover a fair share of the (attorney’s) fees and costs of the prevailing party.
According to a recent CJEU decision, in itself, a system of flat-rates, as provided in Belgium through the procedural cost indemnity, complies with European law. However, it does not comply if it provides for flat rates which, owing to maximum amounts that are too low, do not ensure that, at the very least, a significant and appropriate part of the reasonable costs incurred by the successful party are borne by the unsuccessful party.
An initiative of the Belgian legislator or Government is urgently required, either to amend the Judicial Code or the Royal Decree fixing the flat-rate amounts of procedural cost indemnity.
Flip advocates the following action points:
Implement a general adjustment. Do not limit it to some field, like the intellectual property field in which this issue has been raised and discussed in recent case law;
Simply raise the rates provided in the Royal Decree, as the system per se complies with European Union law according to the CJEU;
Especially raise the rates for disputes including non-monetary claims, like injunctions;
Effectively apply the existing penalty system that is meant to combat unjustified legal actions.