We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
09 March 2015
January 2015 brought two potentially significant developments for patent litigation in Belgium. The first was the consolidation of jurisdiction to hear patent cases in the Brussels Commercial Court. The second was a referral to the European Court of Justice (ECJ) regarding the statutory cap on the recovery of lawyers' fees by the prevailing party. In time, both may contribute to Belgium's rise to respectability as a patent jurisdiction.
As of January 1 2015, exclusive jurisdiction to hear patent cases has been conferred on the Brussels Commercial Court. The Belgian legislature had previously (in its 2007 transposition of the EU Enforcement Directive (2004/48/EC) into national law) reduced the number of first-instance courts that could hear patent cases to five: the commercial courts of Antwerp, Brussels, Ghent, Mons and Liège.
In 2014 Belgium's IP laws were codified in Book XI of the Code of Economic Law. Article XI.327 of this code provides that the Brussels Commercial Court (which has Dutch and French-language sections) has exclusive jurisdiction to hear patent cases. This provision entered into force on January 1 2015 and applies to all patent actions filed after that date.
There is some concern that the expertise of judges in the other four commercial courts (Antwerp, Ghent, Mons and Liège) may go to waste due to this change. However, in a jurisdiction with fewer patent cases than its neighbours (some 20 judgments were issued in patent cases in Belgium in 2014, according to www.darts-ip.com), having a single court deal with all cases seems to be the right move. Hopefully, the Brussels Commercial Court will allocate patent cases to one chamber in each language division, as the Brussels Court of Appeal has done. This will lead to further specialisation of the judges.
The second development came on January 26 2015, when the Antwerp Court of Appeal referred questions regarding Article 14 of the Enforcement Directive to the ECJ for a preliminary ruling. Article 14 requires that EU member states ensure that "reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this".
In Belgium, Article 1022 of the Judicial Code provides that prevailing parties in any litigation cannot recover lawyers' fees exceeding the maximum amounts stipulated in the royal decree of October 26 2007. This decree features a matrix which provides standard, minimum and maximum costs awards, depending on the amount in dispute. Courts can vary the costs awards between the maximum and minimum amounts on the basis of the circumstances of the case. The statutory amount is usually insufficient to cover the parties' real costs of legal representation.
In Rovi/Telenet the defendant asserted that Belgium's statutory cap on the recovery of lawyers' fees in Article 1022 of the Judicial Code is irreconcilable with Article 14 of the Enforcement Directive. The Antwerp Court of Appeal (reluctantly, it seems from the considerations of the judgment) agreed to refer a question on the subject to the ECJ for a preliminary ruling.
In the same reference, the Antwerp Court of Appeal also pointed to Belgian case law, according to which fees for technical counsel (eg, patent attorneys) can be recovered from the unsuccessful party only where the unsuccessful party's defence or claim can be qualified as fault or negligence.
A finding by the ECJ that the Belgian system violates Article 14 of the Enforcement Directive would force the legislature to remove the statutory cap in IP cases or else incur state liability for wrongful transposition of the directive. That may in turn jeopardise the whole system, since parties to non-IP litigation could object that there is no objective justification for different treatment of IP cases. In any event, such a ruling by the ECJ would significantly up the ante in Belgian IP cases, particularly in patent matters.
Both the consolidation of jurisdiction in a single court and the referral on the recovery of lawyers' fees may have a significant impact on patent litigation in Belgium. The Brussels Commercial Court will hear more patent cases and, in doing so, review more judgments from its counterparts in other EU jurisdictions. As a result, the judges of the Brussels Commercial Court will further enhance their expertise in patent law. Further, if prevailing parties can recover the real costs of legal representation, companies may think twice before bringing a frivolous suit and smaller companies defending or bringing a meritorious case may not be scared off easily by an opponent with deeper pockets. In time, both of these developments may produce a net positive impact on the quality of patent judgments in Belgium.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.